Com. v. Colon, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID COLON :
:
Appellant : No. 1963 EDA 2022
Appeal from the Judgment of Sentence Entered June 27, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001268-2022
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 7, 2023
David Colon appeals from the judgment of sentence entered following
his conviction for disorderly conduct, 18 Pa.C.S.A. § 5503(a)(1). He challenges
the sufficiency of the evidence, the weight of the evidence, and the
effectiveness of trial counsel. We affirm.
The trial court summarized the operative facts presented at Colon’s
bench trial as follows:
[Colon] encountered [the victim] when he was swimming at a
YMCA facility. At that time, [the victim] was at the YMCA facility
to receive training to become a certified [YMCA] Swim Lessons
Instructor. [The victim] heard [Colon] yell to another swimmer
that he was going to “f---” her up. [Colon] had encountered this
other swimmer while she was swimming in the same lane as
[him]. . . . Upon observing this situation, [the victim] swam
underneath two lanes to position herself between [Colon] and the
[other swimmer] because it was [the victim’s] job to protect the
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welfare and safety of individuals[.1] As [Colon] was still yelling
and backing up and was closer to the shallow end of the pool, the
other swimmer said something to [Colon] and then [Colon] began
to move forward towards [the victim] and the other swimmer.
[The victim] did not move out of the way. [Colon] stepped to the
side and then [the victim] stepped to the side while her hands
were up at her chest area. [Colon] then took [the victim] by the
throat with one hand, lifted her up and plunged her under the
water, holding her under the water for approximately five
seconds. [Colon] let go of [the victim] and at that point, [Colon]
had gotten pas[t] [the victim] and was still going after the other
swimmer. [The victim] turned around and grabbed [Colon] and
was able to turn him back toward the shallow end of the pool.
Trial Court Opinion, filed 11/18/22, at 6 (citing N.T. at 15-21 and Exh. C-
1/video). The court found Colon guilty and sentenced him to 90 days of
probation. Colon did not file any post-sentence motions but filed a notice of
appeal.
The trial court ordered Colon to file a statement of matters complained
of on appeal, pursuant to Pa.R.A.P. 1925(b). He obtained an extension of time
to file the statement, pending receipt of the trial transcript. He then asked this
Court to remand the case for the appointment of new counsel so that he could
present claims of ineffective assistance of trial counsel. Colon also filed a
request in the trial court for a second extension of time to file his Rule 1925(b)
statement until the issue of his appellate representation had been settled. The
trial court granted the extension, permitted Colon’s trial counsel to withdraw,
and appointed new counsel. This Court then dismissed Colon’s application for
remand as moot.
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1 Although not the lifeguard on duty, the victim was a swimming instructor.
See N.T., 6/27/22, at 15.
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New counsel then filed a timely Rule 1925(b) statement listing three
issues, none of which includes a challenge to the effectiveness of trial counsel.2
Colon raises the same issues in his brief:
1) Was the evidence insufficient to sustain the guilty verdict for
disorderly conduct as there was insufficient evidence that [Colon]
intended to cause any public inconvenience, annoyance or alarm
and his behavior was reasonable, necessary and appropriate
under the circumstances[?] Moreover, the evidence was
insufficient to establish that [Colon’s] conduct served no
legitimate purpose, as he was assaulted (causing a serious hip
injury to [Colon]) and he was simply responding with justifiable
force against assaultive and threatening behavior from two
people, thus rendering insufficient the evidence for any criminal
intent[.]
2) Was the evidence insufficient to sustain the guilty verdict for
disorderly conduct as the Commonwealth failed to disprove that
[Colon] used justifiable force to defend against assaultive and
threatening behavior from two people, which caused a serious hip
injury to [Colon][?] [Colon’s] speech and conduct were reasonable
and only that amount necessary to defendant against assaultive
behavior, therefore the Commonwealth failed to prove that
[Colon’s] behavior served no legitimate purpose and that his
actions were criminal[.]
3) Did [Colon’s] substantive character evidence for his reputation
in the community for being peaceful, law-abiding and honest,
raise a reasonable doubt as to the charge of disorderly conduct?
Colon’s Br. at 7.
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2 Like the issues raised in his brief, Colon’s first two matters challenged the
sufficiency of the evidence. Also, like the third issue Colon presents in his brief,
the third matter in his Rule 1925(b) statement was, “[Colon]’s substantive
character evidence for his reputation in the community for being for being
[sic] peaceful, law-abiding and honest, raised a reasonable doubt as to the
charge of disorderly conduct.” Pa.R.A.P. 1925(b) Statement, 10/10/22, at 2.
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I. Evidence of Intent Versus Self-Defense
Colon’s first two issues are intertwined. He argues that the evidence was
insufficient to prove he intended to cause any public inconvenience,
annoyance, or alarm. Colon’s Br. at 17. He contends that the video the
Commonwealth introduced shows (it has no sound) that the other swimmer
instigated the event by “roughly grabb[ing] his leg when he was swimming,”
and that he responded by telling her not to touch him. Id. (citing Exh. C-
1/video at seconds 5-8 and N.T. at 43-45, 47-50). He claims that the victim
then eagerly and aggressively interjected herself in the interchange, without
introduction or authority, and then assaulted him by performing an “‘under
arm double tote’ lifeguard control move.” Id. at 13, 18, 21, 24. He asserts he
sustained a serious hip injury during the incident. Id. at 24. Colon therefore
claims that the evidence shows that he was reacting to aggression and acting
in self-defense with a reasonable and understandable amount of force, rather
than intending to cause any public inconvenience or alarm. Id. at 17-22.
Sufficiency of the evidence is a question of law. Commonwealth v.
Mikitiuk, 213 A.3d 290, 300 (Pa.Super. 2019). “When reviewing a challenge
to the sufficiency of the evidence, we must determine whether the evidence
admitted at trial, and all reasonable inferences drawn therefrom, when viewed
in a light most favorable to the Commonwealth as verdict winner, support the
conviction beyond a reasonable doubt.” Commonwealth v. Clemens, 242
A.3d 659, 664 (Pa.Super. 2020) (internal quotation marks and citation
omitted). “In conducting this analysis, we do not weigh the evidence and
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substitute our judgment for that of the factfinder,” who is “free to believe all,
part, or none of the evidence.” Id. at 665. We grant relief only where “the
evidence is so weak and inconclusive that, as a matter of law, no probability
of fact can be drawn from the combined circumstances.” Commonwealth v.
Lynch, 242 A.3d 339, 352 (Pa.Super. 2020) (quoting Commonwealth v.
Franklin, 69 A.3d 719, 722 (Pa.Super. 2013)).
The crime of disorderly conduct, as charged here, occurs when a person,
“with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof . . . engages in fighting or threatening, or in violent or
tumultuous behavior.” 18 Pa.C.S.A. § 5503(a)(1). “Public” in this context
means the person’s conduct “affect[ed] or [was] likely to affect persons in a
place to which the public or a substantial group has access[.]” 18 Pa.C.S.A. §
5503(c). The mens rea may be established “by a showing of a reckless
disregard of the risk of public inconvenience, annoyance, or alarm, even if the
[person]’s intent was to send a message to a certain individual, rather than
to cause public inconvenience, annoyance, or alarm.” Commonwealth v.
McConnell, 244 A.3d 44, 51 (Pa.Super. 2020) (citation omitted).
A successful claim of self-defense negates the element of recklessness.
Commonwealth v. Fowlin, 710 A.2d 1130, 1133 (Pa. 1998). However, a
person is only justified in acting in self-defense if he “believes that such force
is immediately necessary for the purpose of protecting himself against the use
of unlawful force by [the] other person.” 18 Pa.C.S.A. § 505(a). Accordingly,
a defendant may use only as much force as is sufficient to repel an unlawful
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attack. Commonwealth v. Pollino, 467 A.2d 1298, 1300 (Pa. 1983); accord
Commonwealth v. Witherspoon, 730 A.2d 496, 499 (Pa.Super. 1999). The
Commonwealth bears the burden of disproving a claim of self-defense beyond
a reasonable doubt. Commonwealth v. Knox, 219 A.3d 186, 196 (Pa.Super.
2019).
The Commonwealth introduced sufficient evidence to prove beyond a
reasonable doubt that Colon engaged in disorderly conduct and that he did so
without justification. Viewed in the light most favorable to the Commonwealth,
the evidence shows that Colon loudly threatened to hurt another person while
he was swimming at the YMCA. She responded verbally, and after initially
retreating, Colon then approached her. He took the victim—who had not
touched or threatened him—“by the throat with one hand, lifted her up and
plunged her under the water.” Trial Ct. Op. at 6. The evidence of these actions
satisfies the element of “fighting, threatening, violence or tumultuous
behavior” and displays at least a reckless disregard of the risk of “public
inconvenience, annoyance, or alarm.” 18 Pa.C.S.A. § 5503(a)(1).
This same evidence was also sufficient to disprove Colon’s claims that
his response to the alleged leg-pulling and the approach by the victim
constituted proper acts of self-defense. When viewed in the Commonwealth’s
favor, the evidence does not demonstrate that his response was immediately
necessary to protect him from unlawful force, but rather shows
disproportionately excessive acts of force.
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II. Character Evidence
Colon asserts that there was a stipulation between himself and the
Commonwealth that the former pool director would testify that Colon had a
reputation in the community for being peaceful, law-abiding, and honest.
Colon’s Br. at 11 (citing N.T. at 40). He argues that this character evidence,
together with allegedly insufficient evidence of mens rea, raised a reasonable
doubt and rendered the evidence insufficient to support the conviction. Id. at
24. He emphasizes the evidence that he was acting in self-defense, was 59
years old, and had lived his life “without incident.” Id. at 26. Colon asserts
that his argument does not go to the weight of the evidence because character
evidence can on its own raise a reasonable doubt. Id. at 25.
In the alternative, he argues that if we construe this issue as a challenge
to the weight of the evidence, we should not find it waived due to trial
counsel’s failure to raise it below. Colon argues that he will be unable to obtain
relief under the Post Conviction Relief Act (“PCRA”)3 for counsel’s
ineffectiveness in failing to preserve the issue because he is no longer serving
a sentence. Id. at 25-26.
We disagree that Colon’s argument goes to sufficiency rather than
weight. Although character evidence is substantive evidence and can be
sufficient to raise reasonable doubt, a fact-finder need not credit such
evidence over other evidence. See Commonwealth v. Luther, 463 A.2d
____________________________________________3 42 Pa.C.S.A. §§ 9541-9546.
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1073, 1077 (Pa.Super. 1983) (“[E]vidence of good character is to be regarded
as evidence of substantive fact just as any other evidence tending to establish
innocence and may be considered by the jury in connection with all of the
evidence presented in the case on the general issue of guilt or innocence”).
Thus, the mere introduction of character evidence does not render the
evidence insufficient as a matter of law. Rather, so long as there is some
evidence of each element of the crime, the evidence is sufficient unless it is
“so weak and inconclusive that, as a matter of law, no probability of fact may
be drawn from the combined circumstances.” Lynch, 242 A.3d at 352
(quoting Franklin, 69 A.3d at 722)..
Colon does not argue that the evidence was so weak and inconclusive
that it could not be sufficient, as a matter of law. Colon’s argument is that the
character evidence in his case necessarily gave rise to reasonable doubt. That
goes to the weight, and not the sufficiency of the evidence. See
Commonwealth v. Copeland, 2022 WL 3909024, at *5-6 (Pa.Super. 2022)
(unpublished mem.). As Colon did not raise a challenge to the weight of the
evidence before the trial court, the issue is waived. See Pa.R.Crim.P. 607(A).
As for Colon’s ineffectiveness claim, we are unable to review it in this
direct appeal. There are three circumstances in which a claim that trial counsel
was ineffective does not have to await collateral review. Two of them are
implicated here: (1) where “there is good cause shown and the defendant
knowingly and expressly waives his entitlement to seek subsequent PCRA
review of his conviction and sentence,” and (2) “where the defendant is
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statutorily precluded from obtaining subsequent PCRA review.”
Commonwealth v. Delgros, 183 A.3d 352, 360, 361 (Pa. 2018).
Neither exception applies here. The first is inapplicable because,
although a short sentence can satisfy the “good cause” requirement, Colon
has not waived subsequent PCRA review of his conviction and sentence. See
Commonwealth v. Turner, 80 A.3d 754, 763 n.7 (Pa. 2013);
Commonwealth v. Holmes, 79 A.3d 562, 564 n.1, 578 (Pa. 2013); see also
Commonwealth v. Rosenthal, 233 A.3d 880, 887 (Pa.Super. 2020).
Moreover, this exception affords the trial court discretion to consider
ineffectiveness in the first instance, not this Court, and Colon did not raise this
claim below. See Delgros, 183 A.3d at 360-61; Commonwealth v. Cowan,
245 A.3d 1038, at *5 (Pa.Super. Dec. 1, 2020) (unpublished memo.).
The second exception cannot apply because it is likewise limited to cases
in which the defendant has raised the ineffectiveness claim in the trial court.
The Supreme Court explained in Delgros that its holding there “require[ed]
trial courts to address claims challenging trial counsel’s performance where
the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Delgros, 183 A.3d at 361. As Colon did not raise his claim below,
this exception has no application here.4
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4 See also Commonwealth v. Whitehead, No. 102 WDA 2019, 2020 WL
119661, at *2 (Pa.Super. filed Jan. 10, 2020) (unpublished mem.).
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Furthermore, Colon received new counsel before he filed his Rule
1925(b) statement but failed to include his ineffectiveness claim in his Rule
1925(b) statement. It is therefore waived. See Pa.R.A.P. 1925(b)(4)(vii).
Finally, the claim is not in the statement of questions presented and is
not fairly suggested by the issues that are listed. Colon has therefore waived
this claim for this reason, as well. See Pa.R.A.P. 2116(a) (“The statement of
the questions involved must state concisely the issues to be resolved. . . . No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby”).
In any event, even assuming Colon met one of the exceptions, and had
properly preserved his claim, we would reject it. The character evidence was
not of such a nature as to so firmly rebut the Commonwealth’s evidence—in
particular, the video—that the failure to preserve the weight claim undermines
confidence in the outcome of his case. In other words, Colon has not shown
prejudice. See Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004)
(“[A] defendant [raising a claim of ineffective assistance of counsel] is
required to show actual prejudice; that is, that counsel’s ineffectiveness was
of such magnitude that it could have reasonably had an adverse effect on the
outcome of the proceedings” (alteration in original; internal quotation marks
and citation omitted)). We therefore affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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