from the Judgment of Sentence June 25, 2015 In the Court of
Common Pleas of Philadelphia County Criminal Division at No.:
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
Steven R. Miller, appeals from the Judgment of Sentence
entered by the Philadelphia County Court of Common Pleas
following his convictions after a jury trial of Aggravated
Assault, Simple Assault, and Possessing an Instrument of
Crime ("PIC"). After careful review, we affirm on all
issues Appellant raised before the trial court, and remand
for consideration of Appellant's after-discovered
October 6, 2013, Appellant, an inmate at Curran-Fromhold
Correctional Facility in Philadelphia, was using a phone in
the prison's telephone bank. Khayree Murray, a fellow
inmate, approached Appellant and asked to use one of the
phones. Correctional Officers Denise Irving and Eddie Rosa
and Correctional Sergeant Joyce Cooper observed Appellant
attack Murray. Appellant stabbed Murray several times with
"a sharp long screw rigged with sharp ridges and a
rubber band wrapped in a ripped T-shirt" in the head,
back, and ear. Officer Rosa immediately intervened, separated
the two men with the help of Officer Irving, and used pepper
spray to subdue Appellant. Officers recovered the makeshift
weapon from the ground after Appellant dropped it. Officer
Rosa testified that Murray was in shock and that he did not
observe Murray strike Appellant.
attempted to downplay his injuries, and told officers that he
fell down some stairs. Murray sustained life-threatening
injuries, which included three stab wounds to the back, two
puncture wounds to the base of his neck, wounds to his back,
back of the head, and left hand, and lacerations to his ear
and cheek. Murray's injuries required eight sutures.
Sergeant Cooper decided to transport Murray to the hospital
for treatment. Appellant had no injuries, but he was treated
for pepper spray in his eyes and placed in solitary
walking with Officer Rosa through the prison shortly after
the stabbing, Appellant stated, "If you didn't
pepper spray, you would have been the next
victim." Trial Court Opinion at 5. In recorded
prison phone calls, Appellant subsequently made several
inculpatory statements, boasted of his violent reputation in
the prison as a result of the attack, and repeated a rumor
that there was a bounty on Murray's head because he was a
proceeded to a jury trial. Murray refused to testify at trial
and the trial court held him in contempt. Appellant testified
and claimed that he acted in self-defense. Although Appellant
claimed that Murray attacked him first with the weapon,
Appellant admitted that he never feared that Murray would
25, 2015, the jury convicted Appellant of Aggravated Assault,
Simple Assault, and PIC. On that same day, the trial court
imposed an aggregate term of 8 to 20 years'
incarceration. Appellant filed a Post- Sentence Motion, which
the trial court denied on October 2, 2015.
filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
presents eight issues on appeal:
1. Were the convictions for [Aggravated Assault, Simple
Assault, and PIC] not supported by sufficient evidence? Was
the evidence speculative, contradictory and inconsistent such
that the verdicts were not supported by sufficient evidence?
2. Were the convictions for [Aggravated Assault, Simple
Assault, and PIC] against the weight of the evidence? Was the
evidence speculative, contradictory and inconsistent?
3. Did the Assistant District Attorney err in his opening
statement by stating that [Appellant] for the same conduct
was disciplined by the prison and given the punishment of
sixty days in solitary confinement, thereby improperly
tainting the jury by the prison disciplinary finding?
Further, did the District Attorney err in questioning the
correctional officer about [Appellant] being placed in the
solitary cell as punishment for this matter? Did the District
Attorney err in his closing speech when he gave his personal
opinion that the correctional officer was telling the truth
and was completely candid and honest with the jury? Did these
errors individually and cumulatively deny [Appellant] his
right to due process and a fair trial? Did Judge Coyle err in
not granting a mistrial?
4. Did Judge Coyle err when instructing the jury by not
giving an adverse inference charge because the alleged
victim, [Murray], refused to testify and pled the Fifth
Amendment? Did Judge Coyle err in refusing to give such an
adverse inference charge to the jury about [Murray's]
lack of testifying?
5. Did Judge Coyle err in allowing the correctional officer
to testify that [Appellant] said to him at the time,
"It's a good thing you broke it up because I would
have assaulted you also" and "If you didn't
pepper spray, you would have been the next victim." Did
Judge Coyle err since this statement was not made and told to
anyone until the third day of trial, the officer had never
even made such a statement in any of the police reports or
discovery or during his testimony at the preliminary hearing
previously and the defense strategy had already been set? Did
the Court err in allowing this testimony and should a new
trial be granted as a result?
6. Did Judge Coyle err in allowing the transcript of the
prison telephone conversation of [Appellant] to be sent back
to the jury during deliberations since it had already been
played to the jury, allowing this testimony to remain with
the jury during deliberation and unduly emphasizing this
testimony, which was unfair to [Appellant]? Further, did
Judge Coyle err in allowing the telephone conversations to be
admitted at all since the conversations seemed to suggest
[Appellant] was a bad person and people were after him,
thereby tainting the jury?
7. Did Judge Coyle err in precluding [Appellant] from
introducing the fact that the alleged victim, [Murray] (an
inmate) had attacked another inmate in a similar fashion at a
prison phone bank and had pending charges on that assault?
Did the Court err since this would show a common scheme, plan
and design, and would show intentional assault by the alleged
8. Did the Superior Court err in not remanding the case to
the trial judge and should a new trial be granted based on
the after discovered evidence of two witnesses who observed
the events and would have confirmed [Appellant's]
Appellant's Brief at 7-11.
of the Evidence
first challenges the sufficiency of the evidence supporting
his convictions for Aggravated Assault, Simple Assault, and
PIC. We review claims regarding the sufficiency of the
evidence by considering 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." Commonwealth v. Melvin, 103
A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of
fact-while passing on the credibility of the witnesses and
the weight of the evidence-is free to believe all, part, or
none of the evidence. Id. In conducting this review,
the appellate court may not weigh the evidence and substitute
its judgment for the fact-finder. Id. at 39-40.
claims that the Commonwealth failed to disprove that
Appellant acted in self-defense, and argues that this negates
Appellant's criminal liability on all charges.
Appellant's Brief at 39.
one employs deadly force, as Appellant did, the elements of a
claim of self-defense are that the individual (1) reasonably
believed that force was necessary to protect himself against
death or serious bodily injury; (2) was free from fault in
provoking the use of force against him; and (3) did not
violate any duty to retreat. Commonwealth v. Mouzon,
53 A.3d 738, 740 (Pa. 2012); see also 18 Pa.C.S
defendant does not have a burden to prove a claim of
self-defense. Commonwealth v. Torres, 766 A.2d 342,
345 (Pa. 2001). Once a defendant introduces some evidence to
justify a finding of self-defense, then the issue is properly
before the fact-finder and the Commonwealth bears the burden
to disprove the defense beyond a reasonable doubt.
case, we conclude that Appellant's testimony-that Murray
attacked him first using the weapon-provided "some
evidence" to support a finding of self-defense. See
id. If Murray provoked the fight, Appellant could have
reasonably believed that force was necessary to protect
the issue of self-defense was before the fact-finder, it was
the Commonwealth's burden to disprove the defense beyond
a reasonable doubt. See id. The Commonwealth
presented sufficient evidence that Appellant initiated the
fight unprovoked after Murray asked to use the phone, that
Appellant unreasonably believed that force was necessary to
protect himself against death or serious bodily injury, that
Appellant acted unreasonably in stabbing Murray repeatedly,
and that Appellant had a duty to retreat without using the
weapon. The Commonwealth presented testimony from several
eyewitnesses, as well as Appellant's own inculpatory
statements about, inter alia, his motive for
review of the evidence in the light most favorable to the
Commonwealth, we conclude that the Commonwealth disproved
beyond a reasonable doubt that Appellant acted in
Assault and Simple Assault
address Appellant's challenges to the sufficiency of the
evidence supporting his convictions for Aggravated Assault
and Simple Assault. "A person is guilty of [A]ggravated
[A]ssault if he . . . attempts to cause serious bodily injury
to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme
indifference to the value of human life[.]" 18 Pa.C.S.
§ 2702(a)(1). The Crimes Code defines "Serious
bodily injury" as "[b]odily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the
function of any bodily member or organ." 18 Pa.C.S.
§ 2301. See Commonwealth v. Walls, 950 A.2d
1028, 1032 (Pa. Super. 2008) (holding that evidence that the
appellant repeatedly stabbed the victim causing cuts,
scratches, and lacerations to the upper torso sufficient to
sustain a conviction for aggravated assault).
person acts intentionally with respect to a material element
of an offense when ... it is his conscious object to engage
in conduct of that nature or to cause such a result[.]"
18 Pa.C.S. § 302(b)(1)(i). "As intent is a
subjective frame of mind, it is of necessity difficult of
direct proof." Commonwealth v. Matthews, 870
A.2d 924, 929 (Pa. 2005) (citations omitted). "[I]ntent
can be proven by direct or circumstantial evidence; it may be
inferred from acts or conduct or from the attendant
circumstances." Id. See also Commonwealth v.
Gray, 867 A.2d 560, 568 (Pa. Super. 2005) (holding that
infliction of multiple stab wounds with screwdriver
demonstrated intent to inflict serious bodily injury).
Pennsylvania, a person is guilty of Simple Assault if he
"attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]" 18
Pa.C.S. § 2701(a)(1). The Crimes Code defines
"Bodily injury" as "[i]mpairment of physical
condition or substantial pain." 18 Pa.C.S. § 2301.
evidence is more than sufficient to sustain Appellant's
convictions for Aggravated Assault and Simple Assault. It was
well within the province of the jury to conclude that
Appellant intended to kill or seriously injure Murray when
Appellant repeatedly stabbed him with a deadly improvised
weapon after Murray asked to use the telephone. Appellant
continued his attack until correctional officers intervened
to separate Appellant from Murray. Appellant finally stopped
when a correctional officer used pepper spray to subdue him.
addition, Appellant repeatedly provided inculpatory
statements to corrections officers and to others while
speaking on the prison phones, including statements about why
he attacked Murray. The jury could also reasonably infer
Appellant's criminal intent from the surrounding
circumstances; namely, that Appellant, a prisoner, possessed
an improvised contraband weapon inside the prison. The
Commonwealth also submitted sufficient evidence of
Murray's serious injuries, his hospitalization, and his
medical treatment, to which Appellant stipulated at trial. In
contrast, there was ample testimony, documentary evidence,
and photographs of Appellant's lack of injuries.
focuses his argument on the contradictory testimony by
various corrections officers. This aspect of his argument
challenges the weight of the evidence, and ignores our
standard of review applicable to sufficiency
challenges. We must view all of the evidence in the
light most favorable to the Commonwealth as verdict winner
and we may not reweigh the evidence and substitute our
judgment for that of the fact-finder. See Melvin,
supra at 39-40.
the totality of the evidence in the light most favorable to
the Commonwealth as the verdict winner, it is clear that the
Commonwealth proved each element of Aggravated Assault and