NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 853 WDA 2011

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. JAMES BRADLEY, Appellant No. 853 WDA 2011 Appeal from the Judgment of Sentence entered November 18, 2010 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR BEFORE: BENDER, J., MUNDY, J., and STRASSBURGER, J. * MEMORANDUM BY BENDER, J. Filed: April 16, 2013 James Bradley appeals the judgment of sentence of life in prison imposed on his conviction of Murder of the First Degree, Persons Not to Possess Firearms, Firearms Not to be Carried Without a License, and Simple Assault. See 18 Pa.C.S. 2502(a), 6105(a)(1), 6106(a)(1), 2701(a)(2) (respectively). Bradley contends that the trial court erred in denying his Motion for Judgment of Acquittal based on a defense of imperfect selfdefense. Upon review, we find Bradley s claim waived and meritless. Accordingly, we affirm his judgment of sentence. Bradley s conviction follows an apparent feud, at the culmination of which Bradley shot the father of his perceived rival in the abdomen, causing * Retired Senior Judge assigned to the Superior Court.

2 his eventual death after prolonged medical intervention proved unsuccessful. At approximately 2:00 a.m., on September 14, 2008, Bradley went to the Aces Deuces bar in the uptown section of Pittsburgh and there confronted the victim, Herkley Fields, Jr., (Fields, Jr.) and his son, Herkley Fields, III, (Fields III) with whom he had started an altercation at a neighboring bar two nights before. On that occasion, Bradley had challenged Fields III, insulting him as a snitch, and attempted to punch him, but missed. As Bradley s blow failed to meet its mark, Fields III struck Bradley in return and knocked him unconscious. Two nights later, Fields III went to the Aces Deuces where Fields Jr. was employed as a doorman. Fields III planned to tell his father of the encounter with Bradley before he learned of it from someone else. On hearing from other sources that Fields III was at the Aces Deuces, Bradley went to the bar as well carrying with him a.09 millimeter pistol that he was not licensed or permitted to carry. Neither the victim, Fields, Jr., nor his son, Fields III, was armed. When Bradley arrived, he confronted Fields III outside the bar, prompting Fields, Jr. to interpose himself between the two, and plead with Bradley to let them alone. Bradley responded abruptly, saying f k your shit, and as he did so, attempted to dodge Fields, Jr., ostensibly to shoot Fields III. He then fired the gun and hit Fields, Jr., the bullet first passing through the victim s arm to lodge in his abdomen. Fields III then ran into the bar seeking shelter and Bradley pursued him. In a - 2 -

3 struggle that ensued between the two, Fields III disarmed Bradley and shot him. Despite his wound, Bradley still fought to take the gun back, prompting Fields III to throw the firearm out of reach and strike Bradley with a bar stool. Fields III then went to aid his father, who lamented, [h]e shot me for nothing. N.T., Jury Trial, 4/20/11-4/22/11, at 143. When the police arrived, they recovered the gun, still containing two live rounds, and a magazine, along with a spent.09 millimeter casing from inside the bar. Later ballistics testing showed the three to be a match. As a result of the shooting, Fields, Jr. suffered substantial internal injuries that, despite multiple surgeries over the ensuing four months, directly precipitated his death in January On January 25, 2009, the Commonwealth charged Bradley with Homicide, in addition to enumerated firearms offenses and Simple Assault. At trial, the Commonwealth presented the testimony of Fields III, as well as the two City of Pittsburgh police officers who responded to the scene of the shooting, the manager of the bar where Fields, Jr. had worked, and the detective, forensic medical examiner, and firearms examiner who investigated elements of the crime. Bradley did not testify on his own behalf and presented no other evidence. Following closing arguments of counsel and the charge of the court, the jury found Bradley guilty of all of the offenses charged, including Murder of the First Degree. The trial court ordered a pre-sentence investigation and, upon its completion, convened the - 3 -

4 sentencing hearing, imposing the life sentence at issue. Thereafter, the court convened a supplemental post-sentence hearing at which it received Bradley s testimony as well as that of his trial counsel, Owen Seman, Esquire, asserting claims of ineffective assistance of counsel relative to counsel s defense strategy. The trial court declined to find counsel ineffective, and Bradley then filed this appeal. Bradley now raises the following question for our review: Did the trial court err when it denied Defendant s motion for Judgment of Acquittal in that the evidence was insufficient to prove beyond a reasonable doubt that Defendant was not entitled to use deadly force to protect himself from the assault by Herky [sic] Fields, III? Brief for Appellant at 4. A defendant s claim of error in the court s denial of a motion for judgment of acquittal is a challenge to the legal sufficiency of the evidence and may be granted only when the Commonwealth has failed to carry its burden of proof. See Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006). In this instance, Bradley asserts that the Commonwealth failed to meet its burden to disprove the defense of either self-defense or imperfect self-defense based upon an unreasonable perception of the need to use deadly force. We find Bradley s contention illusory, however, inasmuch as the record fails to document that he ever asserted such a defense. In point of fact, his counsel s testimony at the supplemental postsentence hearing establishes that counsel made an affirmative decision not - 4 -

5 to pursue the defense, as it conflicted with an alternative strategy. The following excerpt is illustrative: In order to argue self-defense, you have to assert that you, in fact, did the action, you actually did the shooting, yet you are justified in doing so, and you put forth your reasons that you believe that your actions were justified. During all of my representations of James Bradley, it was always his position that he did not have a gun,... which is why the gunshot residue became a major issue at trial, because the homicide detectives even though Mr. Bradley was at all times in police custody, they never performed a gunshot residue test on his hands to determine whether or not he ever fired a gun. So if my my client s now going to say, Hey argue self-defense, and we approach the case in that manner, that client s got to know, hey, to argue self-defense, you have to give up... certain things, one of which being, I did it, but here s why I was justified in doing it. If the client s not going to do that, then there s no self-defense case. * * * * I don t think that the record provided enough information to even get [a self-defense] instruction because there was no testimony regarding anybody else having a gun, even though, the circumstances surrounding Mr. Bradley being shot are murky as well, because I don t think it was ever clear what type of bullet shot Mr. Bradley. So there was [sic] a lot of murky issues, but one of them I mean nobody ever said, Yeah, Herkley Fields, Jr., or Herkley Fields, III, had a weapon or had a gun or were [sic] an aggressor, and without that, you can t in my opinion, you can t get the instruction based on that. N.T., Supplemental Post-Sentencing Motions Hearing, 3/16/11, at What this excerpt reveals, aside from the paucity of evidence supportive of a defense of self-defense, is that trial counsel made a conscious decision not to raise the claim at trial. Consequently, Bradley s interjection of it now is not permissible. See Pa.R.A.P. 302(a) ( Issues not raised in the lower court - 5 -

6 are waived and cannot be raised for the first time on appeal. ). Bradley s challenge to the trial court s denial of his motion for acquittal is therefore waived. Even had Bradley s claim been properly preserved, however, the evidence adduced at trial offers no basis on which a defense of selfdefense or imperfect self-defense could be premised. A defense of imperfect self-defense exists where the defendant actually, but unreasonably, believed that deadly force was necessary. 18 Pa.C.S.A. 2503(b); Commonwealth v. Marks, 704 A.2d 1095, 1100 (Pa. Super. 1997), appeal denied, 555 Pa. 687, 722 A.2d 1056 (1998). However, all other principles of self-defense must still be met in order to establish this defense. Commonwealth v. Broaster, 863 A.2d 588, 596 (Pa.Super.2004). Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012). In Pennsylvania, the right to use deadly force in self-protection is strictly delimited by statute: 505. Use of force in self-protection * * * * (b) Limitations on justifying necessity for use of force.-- * * * * (2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: (i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or - 6 -

7 (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be. 18 Pa.C.S. 505(b)(2). Consistent with these limitations, the defender may use deadly force only if he reasonably believes that such force is necessary to avoid death or serious bodily injury; he did not provoke the use of force against himself in the same incident; and finally, he could not retreat with complete safety. Commonwealth v. Fowlin, 710 A.2d 1130, 1134 (Pa. 1998). If any of these factors is negated; i.e., the defender did not reasonably believe deadly force was necessary; he provoked the incident, or he could retreat with safety, then his use of deadly force in selfdefense was not justifiable.... Id. Analyzed in accordance with the foregoing factors and limitations, the evidence adduced at trial clearly does not support a defense of self-defense. Indeed, as trial counsel correctly recognized, evidence of self-defense was sufficiently scant as to eliminate any basis for the jury even to be instructed on the doctrine. The trial court s synopsis in this regard is unassailable: [Bradley] approached the decedent and his son while they were standing outside of [the bar], and after a verbal argument, [Bradley] shot the decedent. [N.T., Jury Trial, 4/20/10-4/22/10, at ]. * * * * There is no evidence to show, and no witnesses testified, that either the decedent or his son attempted to use or did use any - 7 -

8 deadly force on [Bradley]. In fact, the evidence presented shows that the decedent and his son were unarmed, passive, and even pleading with [Bradley] to leave them alone. [Id. at 141]. [Bradley] could not have reasonably believed that the decedent and his son were going to inflict death or serious bodily injury upon him when neither of them verbally or physically attacked him. [Id.] Based on these facts, there was clearly sufficient evidence to permit the jury to determine that [Bradley] was not justified in using deadly force in self-defense against the decedent and his son. Trial Court Opinion, 5/10/12, at 5-6. The record is devoid of any evidence contrary to the trial court s characterization. Indeed, the evidence overwhelmingly suggests that Bradley acted as the aggressor, having ventured to the bar to rekindle a day s-old altercation with Fields III, ostensibly to avenge himself after the humiliation of that prior encounter. Hence, even if we were to dispose of Bradley s claim on its merits, we would find it devoid of merit. For the foregoing reasons, we affirm Bradley s judgment of sentence. Judgment of sentence AFFIRMED