Com. v. Garro, S. ( 2020 )

J-A17022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEBASTIAN GARRO :
:
Appellant : No. 878 EDA 2019
Appeal from the Judgment of Sentence Entered February 15, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001808-2017
BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 17, 2020
Sebastian Garro (Appellant) appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas following his jury
convictions of aggravated assault1 and related offenses. Appellant contends
the trial court erred by denying a requested jury instruction on justification of
the use of force because he presented evidence of self-defense at trial. We
affirm. We also grant Appellant’s application for extension of time to file a
reply brief.2
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1 18 Pa.C.S. § 2702(a)(1).
2 On June 2, 2020, Appellant filed an application for extension of time to file
a reply brief. Although this Court did not rule on it, on June 11, 2020,
Appellant filed a reply brief. We hereby grant the application for extension of
time to file a reply brief and accept for review the reply brief already filed.
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The victim in this case, Thomas Lynch (Lynch), testified to the following
at trial: Lynch allowed Appellant and his two-year-old daughter to reside with
him in his home located in Tinicum Township, Delaware County, when
Appellant needed a place to stay. N.T. Jury Trial, 12/12/18, at 40-42. Lynch
was confined mostly to his bedroom because he did not have full use of the
left side of his body as a result of a stroke he suffered in 2010. He was capable
of walking up and down stairs and could walk to nearby convenience stores.
Id. at 43. On January 26, 2017, Appellant entered Lynch’s bedroom to
confront Lynch about sexually abusing Appellant’s daughter. Id. at 47. Lynch
was in his bed at the time of the confrontation. Id. Appellant, according to
Lynch, then reached for a machete in Lynch’s bedroom, struck Lynch with it,
and said, “[T]his is what I do to people who hurt [my daughter].” Id. at 47.
Due to the physical limitations caused by the stroke, Lynch was unable to
escape Appellant and was struck repeatedly on his head and arms. Id. at 47-
48. Appellant further attacked Lynch with the machete, and then struck
Lynch’s left leg at the ankle with a steel rod. Id. at 48-49.
While the attack occurred, Appellant’s daughter was present in the home
and knocked on the bedroom door asking Appellant to come out. N.T.,
12/12/18, at 50. After the initial attack, Appellant began to videotape Lynch
and demanded that Lynch admit to sexually assaulting his daughter. Id. at
51-52. Lynch ultimately admitted to touching Appellant’s daughter, but
explained at trial that he made this admission because of the threats and the
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attack upon him that was already perpetrated by Appellant. Id. at 59.
Appellant demanded that Lynch tell him where the deed to the house was so
that Lynch could sign the deed over to Appellant. Id. at 60.
Appellant told Lynch to tell the police that other people were the
perpetrators of the attack on him. Lynch told authorities that three to four
people came into his home and attacked him. N.T., 12/12/18, at 61-62.
Lynch eventually disclosed to the Tinicum Police Department that it was
Appellant who caused his injuries. Id. at 172. Lynch explained that he was
concerned that Appellant or someone on his behalf would kill him because he
had spoken with the police. Id. at 173.
Dr. Bruce Lutz, the orthopedic trauma surgeon who treated Lynch’s
injuries, testified on behalf of the Commonwealth. N.T., 12/12/18, at 117.
Dr. Lutz explained at trial that Lynch sustained a laceration, which went to the
bone of Lynch’s left tibia causing damage to an artery, nerve and tendon. He
also had multiple lacerations to his right arm and his head. Id. at 122-23.
Appellant testified and presented evidence during trial to suggest that
his actions were motivated by self-defense. N.T., 12/13/18, at 54. According
to Appellant, Lynch admitted to touching Appellant’s daughter and that is
when Appellant initially struck Lynch with his fists. Id. Appellant claimed that
during his argument with Lynch, Lynch “went to reach for [the machete],” but
Appellant took the machete away from Lynch and attacked Lynch with it. Id.
at 54, 81. According to Appellant, it was only after Lynch admitted to touching
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Appellant’s daughter that Appellant began attacking Lynch. Id. Appellant
testified that he used the machete against Lynch because he was afraid that
Lynch “might go attack me or my daughter.” Id. In his statement to the
police, Appellant admitted to striking Lynch with a machete five or six times
and “carving him up.” Id. at 80-81. Appellant admitted at trial Lynch never
had the machete, but rather, when Lynch reached for it, Appellant grabbed it
and struck Lynch. Id. at 81.
During the charging conference, Appellant requested the trial court
provide a jury instruction concerning the use of force. The Commonwealth
objected and the court denied Appellant’s request. N.T., 12/13/18, at 136-
38.3
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3 We note the following exchange occurred during the charging conference:
THE COURT: All right. I am not going to charge on
justification, defense of others, which I believe is 9502 in the
standard suggested criminal jury instructions. [Appellant’s
Counsel] has an exception. Anything – to my failure to do that.
Anything else you would like to put on the record, [Appellant’s
Counsel], with regard to that?
[Appellant’s Counsel]: Just I object, Your Honor. I
submitted materials to the Court. I would incorporate them into
my objection.
THE COURT: Okay. You did [ ] submit the materials which
had a reference to Section 506 and a case of Hornberger,
Superior Court of Pennsylvania 72 A.2d 279. . . .
N.T., 12/13/18, at 136-37.
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Finally, we note that because of the serious nature of the allegations
made by Appellant regarding Lynch sexually assaulting Appellant’s daughter,
the Tinicum Police Department conducted a thorough investigation. N.T.,
12/12/18, at 183-84. Their investigation found no evidence to warrant
charges against Lynch. Id. at 185-88.
The jury found Appellant guilty of aggravated assault, possession of an
instrument of crime, endangering the welfare of a child, and persons not to
possess firearms.4 On February 15, 2019, the court sentenced Appellant to
an aggregate term of 20 to 40 years’ imprisonment. Appellant filed a post-
trial motion on February 25th, which the trial court denied on March 15th.
On March 22, 2019, Appellant timely filed a notice of appeal and
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. The trial court filed an opinion on October
29, 2019.
Appellant presents one issue for our review:
[Appellant] testified that he was compelled to use a machete
against his roommate after his roommate tried to attack him with
it. Did the trial court err by failing to charge the jury on
justification for the use of force?
Appellant’s Brief at 3. Appellant contends the trial court erroneously failed to
charge the jury on justification for the use of force because his testimony
provided evidence of self-defense and the trial court decided issues of witness
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4 18 Pa.C.S. §§ 907(a), 4304(a)(1), 6105(a)(1).
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credibility that were for the jury. Id. at 13-15. Appellant argues he had ample
justification for the use of force because Lynch intended to use an immediately
accessible deadly weapon. Id. at 14. Appellant cites Commonwealth v.
Hornberger, 74 A.3d 279 (Pa. Super. 2013), to support his argument that if
a defendant validly asserts self-defense or defense of others, the
Commonwealth bears the burden to disprove justification beyond a reasonable
doubt. See Hornberger, 74 A.3d at 283. Appellant insists that the court
should have instructed on justification on the use of force, because there was
evidence that his testimony supported the necessary elements of a
justification defense. Appellant’s Brief at 13. According to Appellant, his
testimony established that even though he used force against Lynch with a
machete, his conduct was justified because it only started after Lynch first
attempted to take the machete and attack Appellant. Id. at 14. Appellant
claims that his testimony was legally sufficient to support a finding that he
reasonably believed force was “immediately necessary.” Id. at 15. Appellant
also argues that it was not for the trial court to decide whether it believed
him, but rather the jury, who must be given the justification charge if there
was evidence of self-defense.
In reviewing a trial court’s denial of a jury instruction, our standard of
review is as follows:
“[O]ur standard of review when considering the denial of jury
instructions is one of deference — an appellate court will reverse
a [trial] court’s decision only when it abused its discretion or
committed an error of law.” “[O]ur key inquiry is whether the
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instruction on the particular issue adequately, accurately, and
clearly presents the law to the jury, and is sufficient to guide the
jury in its deliberations.”
Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018)
(citations omitted), appeal denied, 217 A.3d 180 (Pa. 2019).
Section 505 of the Pennsylvania Crimes Code states, in pertinent part:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the
person.— The use of force upon or toward another person is
justifiable 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.
(b) Limitations on justifying necessity for use of
force.—
* * *
(2) The use of deadly force is not justifiable under this
section unless the actor believes that such force is necessary
to protect himself against death, serious bodily injury,
kidnapping or sexual intercourse compelled by force or
threat; nor is it justifiable if:
(i) the actor, with the intent of causing death
or serious bodily injury, provoked the use of force
against himself in the same encounter; or
(ii) the actor knows that he can avoid the
necessity of using such force with complete safety by
retreating, except the actor is not obliged to retreat
from his dwelling or place of work, unless he was
the initial aggressor or is assailed in his place of
work by another person whose place of work the actor
knows it to be.
(2.1) Except as otherwise provided in paragraph
(2.2), an actor is presumed to have a reasonable belief that
deadly force is immediately necessary to protect himself
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against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat if both of the
following conditions exist:
(i) the person against whom the force is used is
in the process of unlawfully and forcefully entering, or
has unlawfully and forcefully entered and is present
within, a dwelling, residence or occupied vehicle; or
the person against whom the force is used is or is
attempting to unlawfully and forcefully remove
another against that other’s will from the dwelling,
residence or occupied vehicle.
(ii) the actor knows or has reason to believe that
the unlawful and forceful entry or act is occurring or
has occurred.
(2.2) The presumption set forth in paragraph (2.1)
does not apply if:
* * *
(iii) the actor is engaged in a criminal activity
or is using the dwelling, residence or occupied vehicle
to further a criminal activity;
18 Pa.C.S. § 505(a), (b)(2), (b)(2.1), (b)(2.2)(iii) (emphases added).
Further, Section 506 provides:
§ 506. Use of force for the protection of other persons
(a) General rule.—The use of force upon or toward the
person of another is justifiable to protect a third person when:
(1) the actor would be justified under section 505
(relating to use of force in self-protection) in using such
force to protect himself against the injury he believes to be
threatened to the person whom he seeks to protect;
(2) under the circumstances as the actor believes
them to be, the person whom he seeks to protect would
be justified in using such protective force; and
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(3) the actor believes that his intervention is
necessary for the protection of such other person.
18 Pa.C.S. § 506(a).
Before self-defense may be invoked, there must be evidence presented
to justify a finding of self-defense. Commonwealth v. Webster, 416 A.2d
491, 492 (Pa. 1980). A jury charge on self-defense must be given upon
request where the jury would have a possible basis for finding for finding self-
defense. Commonwealth v. Brown, 421 A.2d 660, 662 (Pa. 1980).
In Hornberger, the case relied upon by Appellant, the defendant was
convicted of third degree murder after he attacked the victim, who was
temporarily staying in the same apartment as the defendant. See
Hornberger, 74 A.3d at 281. The defendant claimed he acted to protect a
friend, who was also staying at the apartment, and whom the victim attacked.
Id. The trial court provided the following jury instruction:
Similar to [the court’s instructions concerning self-defense],
if you find that [the defendant] and [the friend he was purportedly
protecting] had the right to be in [the] apartment that evening
and you also find that [the victim] did not have the right to be in
the . . . residence, then [the defendant] and [his friend] had no
obligation to retreat from the apartment. If, however, you find
that [the defendant] and [his friend] and also [the victim] had the
privilege to be present in the . . . residence, then [the defendant]
and [his friend] had a duty to retreat to avoid the necessity of
deadly force.
Id. at 281-82.
Following the defendant’s conviction, he submitted a post-trial motion
for a new trial. Hornberger, 74 A.3d at 282. Ultimately, the trial court
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agreed with the defendant’s position, vacated his convictions, and ordered a
new trial. Id. On appeal, this Court affirmed, concluding:
Because a defendant does not have a duty to retreat from his
dwelling except with limited exceptions, we also agree that the
jury should be instructed that if they find that [the] apartment
constitutes a dwelling place for [the defendant] and [his friend],
then no duty to retreat applies unless [the defendant] or [his
friend], or both, were the initial aggressors.
Id. at 286.
In the present case, the trial court summarized its ruling:
[T]he court did not err by failing to charge the jury on justification
for the use of force as it is only necessary for the trial judge to
determine as a matter of law that the three elements for
justification of the use of force existed before the trial judge is
required to read the instruction to the jury. [Appellant] attempted
to use Hornberger in the objection against the trial judge’s
decision to not read the justification of force charge to the jury.
In Hornberger the court ruled that the trial judge erred as to not
charging the jury as to the justification for self-defense because it
should have been a jury question as to whether or not the
[defendant] was in a dwelling in which he had no duty to retreat.
In the matter at hand it is not even a question of whether
[Appellant] was in his dwelling when the attack on Lynch occurred
because [Lynch] was in his own dwelling. However, as 18 Pa.C.S.
§ 506(a)(1) states, “The use of force upon or toward the person
of another is justifiable to protect a third person when the actor
would be justified under section 505 (relating to use of force in
self-protection) in using such force to protect himself against the
injury he believes to be threatened to the person whom he seeks
to protect.” Additionally, 18 Pa.C.S. § 505 calls for the actor to
believe the force is “immediately necessary.” Since [Lynch] was
a disabled stroke victim that could not even retreat when
[Appellant] attacked him the trial judge found that the force was
not “immediately necessary” given the circumstances and under
the rule listed in Hornberger would not be compelled to charge
the jury on the justification of force.
Trial Ct. Op. 10/29/19, at 4-5 (citations omitted).
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Here, we agree Appellant was not entitled to a jury instruction on
justification of the use of force. See 18 Pa.C.S. §§ 505, 506. Appellant failed
to meet the elements required under Section 505 or 506 to establish self-
defense or defense of others. Although both Hornberger and this case
concern defendants who occupied the same dwelling as the victim, this case
is distinguishable because it was undisputed that Appellant initiated the
attack. Appellant himself testified he first punched Lynch with his fists while
Lynch was in his bed. N.T., 12/13/18, at 54. Appellant further testified that
in the “middle of the confrontation,” the victim “reach[ed] for” the machete,
but Appellant “grabbed it off him” and “carve[d Lynch] up.” Id. at 54, 80-81.
Neither Appellant nor his daughter were in any imminent danger posed by
Lynch as Lynch, a disabled stroke victim, could not retreat, and also had no
duty to do so since he was in his own home. Thus, the record supports the
court’s determination that Appellant’s use of force was not “immediately
necessary.” See Trial Ct. Op. at 5.
Moreover, regardless of whether Appellant subjectively believed force
was “immediately necessary,” he was not entitled to a justification instruction
because his own testimony demonstrated he “provoked the use of force” and
was the “initial aggressor.”5 See 18 Pa.C.S. § 505(b)(2)(i)-(ii). Appellant’s
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5“[A]n appellate court is not bound by the rationale of the trial court and may
affirm on any basis if the record supports it.” Commonwealth v. Diaz, 183
A.3d 417, 421 (Pa. Super. 2018).
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own version of events defeated any self-defense or justification since the
charge, by its very definition requires “immediacy.” Appellant himself noted
that although the victim “reached for” the machete, he never possessed,
brandished or attempted to use it against Appellant. Once “disarmed” the
victim posed no threat and there was thus no need to “carve him up.” Given
these circumstances, we conclude the trial court properly refused to charge
the jury on the justification of force. Thus, no relief is due.
Judgment of sentence affirmed. Appellant’s application for extension of
time to file a reply brief granted.
President Judge Emeritus Ford Elliott joins this Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/20
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