November 26, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
BRIAN K. ANDERSON Appellant
Appeal from the Judgment of Sentence July 26, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005632-2011
BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J. [*]
Appellant, Brian K. Anderson, appeals from the judgment of sentence, pursuant to a conviction for first-degree murder, entered on July 26, 2012, by the Honorable Kevin F. Kelly, Court of Common Pleas of Delaware County. After careful review, we affirm.
In a recorded statement to police investigators on April 22, 2011, Anderson admitted that in the evening of April 19, 2011, he had hit the victim, Toby Gale, Jr., in the head with a hammer. Anderson stated that he delivered the blow because he believed that Gale was trying to rob him and was reaching for a firearm. It is undisputed that Gale did not have a firearm at the time.
Anderson then wrapped Gale, who may have still been alive at the time, in trash bags sealed with duct tape. Anderson placed Gale in the trunk of his vehicle, and dumped him in a vacant lot in the City of Chester. Anderson then disposed of the hammer in a dumpster behind a market in Chester. He was subsequently arrested by Chester police officers and charged with murder.
After trial, a jury found Anderson guilty of first-degree murder, possession of an instrument of crime, tampering with physical evidence, and abuse of a corpse. Subsequently, the trial court sentenced Anderson to life imprisonment without the possibility of parole, plus a consecutive sentence of one to two years' imprisonment on the abuse of a corpse charge. Anderson filed post-sentence motions, which he subsequently withdrew. This timely appeal followed.
On appeal, Anderson challenges the sufficiency of the evidence supporting his conviction for first-degree murder. In particular, Anderson contends that the evidence cannot, as a matter of law, be sufficient to overcome his claimed excuse of imperfect self-defense: "As [Anderson] actually but unreasonably believed that deadly force was necessary to defend himself, the evidence was sufficient to prove Voluntary Manslaughter (i.e., "imperfect self-defense") but not Murder of the First Degree." Appellant's Brief, at 6.
Our standard of review of a challenge to the sufficiency of the evidence supporting a conviction is well-established:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence . . . Finally, the trier of fact while passing on the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Knox, 50 A.3d 749, 754 (Pa.Super. 2012) (citations omitted). The concept of malice is inconsistent with self-defense. Therefore, when the defense is raised, the Commonwealth bears the burden of disproving such a defense beyond a reasonable doubt in order to sustain a murder conviction. See Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.Super. 2008). Specifically, when a defendant raises the issue of self-defense, the Commonwealth must establish one of the following elements beyond a reasonable doubt:
(1) that appellant did not reasonably believe it was necessary to kill in order to protect himself against death or serious bodily harm, or that appellant used more force than was reasonably necessary to save himself from death, great bodily harm, or the commission of a felony;
(2) that appellant provoked the use of force; or,
(3) that appellant had a duty to retreat and that retreat was possible with complete safety.
See 18 Pa.C.S.A. § 505(b)(2); see also Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa.Super. 2005). In addition, a defendant can be found not guilty of first-degree murder if the fact-finder concludes that the defendant actually, but unreasonably, believed that deadly force was necessary. See Commonwealth v. Truong, 36 A.3d 592, 599 (Pa.Super. 2012) (en banc), appeal denied, __ Pa. __, 57 A.3d 70 (2012). This conclusion is often referred to as "imperfect self-defense, " and justifies a conviction for voluntary manslaughter. A "voluntary manslaughter defense must be carefully distinguished from ordinary affirmative defenses." Commonwealth v. Jones, 473 Pa. 211, 219 n. 6, 373 A.2d 1338, 1342 n. 6 (1977) (citation omitted) (Roberts, J., concurring). "Although voluntary manslaughter is defined in terms of provocation, heat of passion, and imperfect self-defense, the defendant has no burden to introduce such factors before a voluntary manslaughter verdict is permissible. Voluntary manslaughter is a permissible verdict whether or not the defendant presents a defense." Id. at 1341-42.
The Commonwealth cannot sustain its burden of proof solely on the fact-finders' disbelief of the defendant's testimony or assertion he acted in self-defense. Disbelief does not, taken alone, afford affirmative proof that the denied fact exists. See Commonwealth v. Rivera, 603 Pa. 340, 356, 983 A.2d 1211, 1221 (2009). However, "a jury is not required to believe the testimony of the defendant who raises the claim." Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000). If the defendant did not actually believe that deadly force was necessary, then voluntary manslaughter is not an appropriate verdict. See Truong, 36 A.3d at 599.
Here, Anderson argues that he actually, but unreasonably, believed that the victim, Toby Gale, Jr., was reaching for a firearm after threatening to rob Anderson and an associate. However, our review of the record reveals a plethora of evidence to support a finding that Anderson killed Gale with malice, and not out of an actual fear for his life.
First, the Commonwealth presented evidence of animus between Anderson and Gale. At the time of Gale's death, Anderson was living with his grandmother, Teresa Bishop. Ratika Lashandra Cruz was a care-taker for Bishop, and was at Bishop's home to arrange for services for Bishop on the afternoon of April 19, 2011. She testified that she observed Anderson texting on his cell phone and state "if this nigger come over here I'm going to fuck him up." NT., Trial, 5/14/2012, at 204. While Cruz testified that she was not explicitly aware of who Anderson was referring to, it was permissible for the jury to infer that Gale was the object of Anderson's ire, given that Anderson admits that he killed Gale that evening.
In addition, the Commonwealth presented expert testimony that Gale was struck twice in the head with a hammer, not just once, as claimed by Anderson. Bennett Preston, M.D., testified that Gale had been "struck twice in the head, once to the upper forehead to the right side and once to the right side of the head." NT., Trial, 5/16/2012, at 37. The injury to the forehead was caused by "the rounded, flat end" of the head of the hammer. Id., at 40. The injury to the right side of the head was caused by the claw of the hammer head. Id. Either injury would have been enough to immediately incapacitate Gale. See id., at 46. This testimony certainly undercut the credibility of Anderson's claim that he struck Gale only once with the hammer. Evidence of a second blow from the hammer, after Gale was already incapacitated, is also sufficient, by itself, to support a finding that Anderson acted with malice and not in self-defense.
Furthermore, Dr. Preston opined that Gale was still alive when Anderson placed a garbage bag over his head. See id., at 45-46. Gale had a 50/50 chance of surviving the injuries to his head if he had been provided immediate medical treatment. See id., at 48. Dr. Preston believed that Gale's death was caused by "[bjlunt-force injury to the head contributed to by asphyxiation." Id., at 50. Based upon this evidence, even if the jury had believed that Anderson acted pursuant to an actual belief that Gale was threatening him, the jury was entitled to conclude that Anderson's failure to seek immediate medical attention for Gale established that Anderson acted with malice.
Finally, the Commonwealth presented evidence that Anderson went to great lengths to clean up and hide the crime scene. See, e.g., NT., Trial, 5/15/12, at 45-54; 201-204. Evidence that the defendant cleaned the site of the murder in an attempt to hide evidence of the crime permits an inference of the defendant's consciousness of his own guilt. See Truong, 36 A.3d 592, 600 (Pa.Super. 2012) (en banc).
Viewing the record as a whole, there was sufficient evidence to support the jury's verdict that Anderson acted with malice when he killed Gale. We therefore conclude that Anderson's challenge to the sufficiency of the evidence supporting his conviction merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.