Com. v. Barner, K. (memorandum)

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J-S74003-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. KENNETH LATAURUS BARNER Appellant No. 1426 WDA 2012 Appeal from the Judgment of Sentence August 21, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015189-2011 BEFORE: PANELLA, OLSON and WECHT, JJ. MEMORANDUM BY PANELLA, J.: FILED MAY 23, 2014 Appellant, Kenneth Lataurus Barner, appeals from the judgment of sentence entered on August 21, 2012, in the Court of Common Pleas of Allegheny County. After careful review, we affirm. Barner was charged with criminal attempt - homicide, aggravated assault and tampering with or fabricating physical evidence in relation to the shooting1 not guilty of the criminal attempt - homicide charge, but was found guilty of the remaining charges. Subsequent thereto, the trial court sentenced Barner No post-sentence motions were filed. This appeal followed. ____________________________________________ 1 Thomas sustained injuries to his left elbow, upper arm and his chest cavity. See N.T., Jury Trial, 5/8/12-5/9/12, at 56-57, 213. J-S74003-13 On appeal, Barner raises the following issue for our review: I. WAS THE EVIDENCE SUFFICIENT TO SUSTAIN THE CONVICTION FOR AGGRAVATED ASSAULT WHERE THE COMMONWEALTH FAILED TO DISPROVE BEYOND A REASONABLE DOUBT THAT MR. BARNER ACTED IN SELFDEFENSE? Our standard of review is well-settled. 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. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the factburden may be met by wholly circumstantial evidence and any finder unless 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. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011) (citation omitted). Barner was convicted of aggravated assault. Under the Crimes Code, a person may be convicted of aggravated assault, graded as a felony of the PA.CONS.STAT.ANN. -2- J-S74003-13 causes serious, permanent disfigurement, or protracted loss of impairment of the PA.CONS.STAT.ANN. § 2301. Barner does not dispute the proof of the elements of aggravated assault; instead, he argues that the Commonwealth did not disprove his claim of selfdefense. The use of force against a person is justified when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person. See 18 Pa.C.S. § 505(a). When a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove such a defense beyond a reasonable doubt. Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008). In order for the Commonwealth to disprove self-defense, one of the following elements must exist: (1) the defendant used more force than was necessary to save himself from death, bodily injury, or the commission of a felony; (2) the defendant provoked the use of force; or (3) the defendant had a duty to retreat, which was possible to accomplish with complete safety. See Commonwealth v. Burns, 765 A.2d 1144, 1148-1149 (Pa. disprove a claim of self-defense arising from any source beyond a reasonable doubt, a jury is not required to believe the testimony of the Bullock, 948 A.2d at 824. Based upon our review of the record, it is evident that Barner has negated one of the elements of self-defense. The evidence presented at trial -3- J-S74003-13 11:00 PM on November 10, 2011. Thomas knocked on the front door, identified himself to Barner and, after a few minutes, Barner opened the door, brandishing a gun. Thomas was unarmed. By his own admission Barner denied the intentional or conscious use of force against Thomas. gle. N.T. Jury Trial, 5/8/12-5/9/12, at 180-181, 183. In Commonwealth v. Mayfield, 585 A.2d 1069 (Pa. Super. using deadly force in defense of himself, he has negated one of the elements of self-defense; therefore, he may not avail himself of an instruction on justification even though evidence from other sources would be sufficient to Id., at 1075. Accordingly, we are in agreement with the trial court that the evidence in no way indicated that Thomas was the aggressor or, more importantly, that Barner was defending himself from an assault by Thomas. Judgment of sentence affirmed. Jurisdiction relinquished. Wecht, J., concurs in the result. -4- As such, J-S74003-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/23/2014 -5-

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