HomeMy WebLinkAboutCP-21-CR-0000050-2017
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
VS. : CP-21-CR-0050-2017
:
:
JEFFREY SCOTT POWELL :
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
BREWBAKER, J., August 3, 2017
Appellant Jeffrey Scott Powell raises a single issue in his appeal, alleging that the
Commonwealth failed to disprove beyond a reasonable doubt that his use of force was justified
pursuant to Section 505 of the Pennsylvania Crimes Code. For the reasons that follow, the Court
respectfully suggests that the jury’s verdict should be upheld.
Procedural History
Appellant Jeffrey Scott Powell was tried on May 1-2, 2017 by a jury of his peers on a
charge of simple assault, a misdemeanor of the second degree. Following that trial, the jury
found him guilty of simple assault, and the Court found him guilty of two summary counts of
harassment. Appellant was sentenced on June 13, 2017 to time-served (one day) to fifteen
months on the simple assault, as well as fines and costs for all charges. He timely filed an appeal
on June 22, 2017, and pursuant to this Court’s Order of that same date, timely filed his Concise
Statement on July 13, 2017.
Statement of Facts
In November of 2016, Appellant was living with his wife, Ashanee Easy and her four
1
children. Ms. Easy and Appellant had been together for about four years, but married for almost
three. Ms. Easy’s son Murice, one of the children living in the home, was seventeen years old,
2
around 5’8” tall, and weighed about 140 pounds. Ms. Easy’s and Murice’s trial testimony were
very similar, and are summarized below.
3
On November 2, 2016, Murice was upstairs helping with his younger siblings. He and
his mother, Ms. Easy, were keeping watch for the Defendant’s impending arrival from work as
4
Appellant did not approve of Murice spending time with the younger children. Since Murice
had revealed his homosexuality approximately a year prior, Appellant had not wanted him
5
around his younger siblings. Furthermore, Appellant constantly insulted Murice for being gay,
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calling him “faggot,” “gay ass,” “queer,” and “homo.”
When Appellant arrived home from work on November 2, 2016, his three-month old
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baby was crying, and Ms. Easy was busy cooking. When Ms. Easy asked Appellant to pick the
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baby up, he told her to give him a minute because “I fucking just got through the door.” Ms.
Easy then asked Murice to come help with the baby, but when Appellant saw Murice holding the
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baby, he told Murice to give the baby to him. Ms. Easy had previously heard Appellant tell
Murice not to touch the younger kids, because “he doesn’t want a faggot touching his kids, or
1
Notes of Testimony (hereinafter “N.T.”), pages 22-23.
2
N.T. pg. 24.
3
N.T. pg. 25.
4
N.T. pg. 26.
5
N.T. pg. 55.
6
N.T. pg. 56.
7
N.T. pg. 27.
8
Id.
9
N.T. pgs. 27-28, 57.
2
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they are going to be gay.” Ms. Easy, who could see and hear Appellant from her vantage point,
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heard Appellant telling Murice to hand over the baby, and ran over to them. Murice carefully
went to hand the baby to Appellant, and Appellant yelled “you almost dropped the fucking
1213
baby.” Murice denied that and walked away. Ms. Easy intervened in support of Murice,
telling Appellant that Murice did not almost drop the baby, and that he needed to leave him
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alone.
Appellant yelled at Murice again about almost dropping the baby, and Murice told him he
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was sick and tired of the defendant talking like that to him all of the time. Appellant
proceeded to put his face very close to Murice’s face and threated that he would punch him in the
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face if he dropped the baby again. Murice calmly told Appellant that he was tired of being
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talked to in that manner.
Appellant slid the baby into her swing, and walked back to Murice, grabbed him by his
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shirt, shook him violently and then punched him in his right cheek with his closed fist. Murice
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told Appellant to let him go, and Ms. Easy jumped in and tried to pull Appellant off of Murice.
The three of them continued scuffling around until Appellant grabbed Ms. Easy and began to
20
choke her. Not being strong enough to get Appellant off of his mother, Murice grabbed his
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tablet and began recording a video of the incident.
10
Id.
11
N.T. pg. 28.
12
N.T. pgs. 30, 58.
13
N.T. pg. 58.
14
N.T. pg. 30.
15
N.T. pgs. 30-31, 59.
16
N.T. pg. 59.
17
N.T. pg. 60.
18
N.T. pgs. 32-33, 60-62.
19
N.T. pgs. 33, 63.
20
N.T. pgs. 35-36, 65.
21
N.T. pgs.36, 65.
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When Appellant saw Murice with the tablet, he slapped it out of his hand and attacked
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him again. Ms. Easy again started hitting Appellant in an attempt to get him off of Murice,
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even punching Appellant in the nose and causing it to bleed. Ms. Easy’s fifteen-year -old son
then jumped in so that he and Murice were also punching Appellant, who would not let go of
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Murice’s shirt until it finally ripped. Appellant then told the family, “I am going to call the
fucking cops on you guys, you know. You guys are black. You definitely are going to jail.
You guys are black. I am white. You know, if I call the cops, you guys are going to jail. You
25
are going to lose your kids….” Appellant did call the police, after which he changed his mind
and called back to cancel, but two officers from Lower Allen Township Police Department
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arrived soon thereafter.
When the police arrived, Ms. Easy immediately told them that Appellant had hit Murice
2728
because Murice was homosexual and Appellant did not want him holding the baby. Officer
Jeremy Read spoke separately to Appellant, who told him that Murice was not his biological
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child, and that Murice had dropped the baby who was his biological child. Appellant said he
caught the baby, after Murice dropped her, but then Murice “came at him,” at which time
22
N.T. pgs. 37, 67.
23
N.T. pgs. 37-38, 67.
24
Id.
25
N.T. pgs. 38-39, 68.
26
N.T. pg. 39.
27
Although Ms. Easy also testified that Appellant had assaulted Murice because he was
homosexual, she did not write anything about his sexual preference at the cause of Appellant’s
ire in her written statement to the police. Similarly, at the preliminary hearing on this case, Ms.
Easy testified that Appellant attacked Murice after accusing him of dropping the baby, and not
because he was gay. Murice’s written statement and preliminary hearing testimony similarly
omitted any mention that Appellant had attacked him due to his homosexuality, rather indicating
that the altercation began after Appellant accused Murice of dropping the baby. N.T. pgs. 41-44,
46, 76-77.
28
N.T. pg. 81.
29
N.T. pg. 82.
4
30
Appellant punched Murice in the face in self-defense. Appellant also told Officer Read that
after he punched Murice in self-defense, the rest of the family “rushed” him and began hitting
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him.
During Officer Read’s questioning of Appellant, Officer Katie Justh spoke to the other
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members of the family, who showed her the video Murice had recorded and his torn shirt.
Murice complained of a sore jaw and Ms. Easy noted a sore hand; additionally, Appellant
defendant had a bloody nose, though Officer Read believed he was exaggerating his injury,
3334
continuously dabbing at it unnecessarily. The police officers then arrested Appellant.
35
Appellant, who is 5’11” and approximately 200 pounds, testified in his own defense.
After finishing work at the Post Office around 6:00 p.m. on November 2, 2016, he arrived home
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soon thereafter. When he came out of the shower he saw Murice holding the baby, and went to
37
get the baby from Murice. He said that the baby slipped, and he grabbed her, and then verbally
38
reprimanded Murice for dropping the baby. As he was yelling at Murice, Ms. Easy and Murice
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both “charged” him, at which time he “gingerly struck” Murice in the face. Then Ms. Easy,
Murice, and Ms. Easy’s other son all “gang-punched” Appellant, with Ms. Easy hitting him “at
least twenty times in the nose in the exact same spot,” while the boys were kicking and punching
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him. Appellant further testified that he never choked Ms. Easy or put his arm around her neck,
and that he never said they would get arrested because they were black and he was white, stating
30
Id.
31
Id.
32
N.T. pgs. 83, 88.
33
N.T. pgs. 83-85.
34
N.T. pg. 83.
35
N.T. pg. 108.
36
N.T. pg. 94.
37
N.T. pgs. 95-96.
38
N.T. pg. 96.
39
N.T. pg. 97, 107.
40
N.T. pgs. 97-98.
5
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“I love my black wife. I love my two black step-children.” Appellant produced pictures of
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some bruising on his bicep, leg and foot. Appellant also testified that he does not dislike
Murice, had no problem with him being gay, and bought him a Lexus for his seventeenth
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birthday. In rebuttal, Ms. Easy testified that due to a diagnosis of juvenile diabetes Murice did
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not have a driver’s license, and that Appellant had actually bought the Lexus for himself.
Analysis
According to the Pennsylvania Crimes Code, “\[t\]he 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.” 18 Pa.C.S. § 505(a). Because the defendant properly raised his claim of self-
defense, the burden was on the Commonwealth to prove beyond a reasonable doubt that the
defendant’s actions were not justifiable self-defense. Commonwealth v. Smith, 97 A.3d 782, 787
(Pa. Super. 2014) (citing Commonwealth v. McClendon, 874 A.2d 1223, 1229–30 (Pa. Super.
2005)). Furthermore, the Commonwealth satisfies this burden by establishing at least one of the
following factors: 1) the accused did not reasonably believe that he was in danger of death or
serious bodily injury; 2) the accused provoked or continued the use of force; or 3) the accused
had a duty to retreat and the retreat was possible with complete safety. Smith, at 787 (citing
Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super. 2008), appeal denied, 964 A.2d 894
(Pa. 2009)).
41
N.T. pgs. 99, 101.
42
N.T. pgs. 101-103.
43
N.T. pgs. 104, 106.
44
N.T. pgs. 114-115.
6
In Commonwealth v. Torres, the Supreme Court held that the Commonwealth had not
met its burden of disproving the defendant’s self-defense claim where the only evidence
regarding the assault was the defendant’s testimony. 766 A.2d 342, 345 (Pa. 2001). Although
the police officer testified regarding the victim’s statements, the victim had not addressed who
was the initial aggressor, and thus the defendant’s version remained uncontested. Id.
Contrary to Torres, the instant case involved the testimony of several eyewitnesses, and
thus became an issue of credibility for the jury. It is well established that the jury “is free to
believe all, none or some of the evidence and to determine the credibility of the
witnesses.” Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017) (quoting
Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2015)). Furthermore, “\[a\]lthough the
Commonwealth is required to disprove a claim of self-defense ... a jury is not required to believe
the testimony of the defendant who raises the claim.” Commonwealth v. Houser, 18 A.3d 1128,
1135 (Pa. 2011) (quoting Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990)).
The jury clearly found the testimony of Murice and his mother to be more credible than
that of the defendant, as they dismissed his claim of self-defense, likely due to the testimony that
he was the initial attacker. There is absolutely no evidence that this was an improper
determination or outside the province of the jury, and thus the jury’s decision should be
upheld. This Court respectfully requests that Appellant’s appeal be denied.
August 3, 2017 ________________________________
Jessica E. Brewbaker, J.
Charles Volkert, Jr., Esquire Joshua Yohe, Esquire
Chief Deputy District Attorney Assistant Public Defender
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