Commonwealth v. Colon

• Docket Number: 1963 EDA 2022,J-A12042-23
• Decision Date: 07 August 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. DAVID COLON Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. DAVID COLON Appellant

No. 1963 EDA 2022

No. J-A12042-23

Superior Court of Pennsylvania

August 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered June 27, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001268-2022

BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM

McLAUGHLIN, J.:

David Colon appeals from the judgment of sentence entered following his conviction for disorderly conduct, 18 Pa.C.S.A. § 5503(a)(1). He challenges the sufficiency of the evidence the weight of the evidence, and the effectiveness of trial counsel. We affirm.

The trial court summarized the operative facts presented at Colon's bench trial as follows:

[Colon] encountered [the victim] when he was swimming at a YMCA facility. At that time, [the victim] was at the YMCA facility to receive training to become a certified [YMCA] Swim Lessons Instructor. [The victim] heard [Colon] yell to another swimmer that he was going to "f---" her up. [Colon] had encountered this other swimmer while she was swimming in the same lane as [him]. . . . Upon observing this situation, [the victim] swam underneath two lanes to position herself between [Colon] and the [other swimmer] because it was [the victim's] job to protect the welfare and safety of individuals[.^[1] As [Colon] was still yelling and backing up and was closer to the shallow end of the pool, the other swimmer said something to [Colon] and then [Colon] began to move forward towards [the victim] and the other swimmer. [The victim] did not move out of the way. [Colon] stepped to the side and then [the victim] stepped to the side while her hands were up at her chest area. [Colon] then took [the victim] by the throat with one hand, lifted her up and plunged her under the water, holding her under the water for approximately five seconds. [Colon] let go of [the victim] and at that point, [Colon] had gotten pas[t] [the victim] and was still going after the other swimmer. [The victim] turned around and grabbed [Colon] and was able to turn him back toward the shallow end of the pool.

Trial Court Opinion, filed 11/18/22, at 6 (citing N.T. at 15-21 and Exh. C-1/video). The court found Colon guilty and sentenced him to 90 days of probation. Colon did not file any post-sentence motions but filed a notice of appeal.

The trial court ordered Colon to file a statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). He obtained an extension of time to file the statement, pending receipt of the trial transcript. He then asked this Court to remand the case for the appointment of new counsel so that he could present claims of ineffective assistance of trial counsel. Colon also filed a request in the trial court for a second extension of time to file his Rule 1925(b) statement until the issue of his appellate representation had been settled. The trial court granted the extension, permitted Colon's trial counsel to withdraw, and appointed new counsel. This Court then dismissed Colon's application for remand as moot.

New counsel then filed a timely Rule 1925(b) statement listing three issues, none of which includes a challenge to the effectiveness of trial counsel.^[2]Colon raises the same issues in his brief:

1) Was the evidence insufficient to sustain the guilty verdict for disorderly conduct as there was insufficient evidence that [Colon] intended to cause any public inconvenience, annoyance or alarm and his behavior was reasonable, necessary and appropriate under the circumstances[?] Moreover, the evidence was insufficient to establish that [Colon's] conduct served no legitimate purpose, as he was assaulted (causing a serious hip injury to [Colon]) and he was simply responding with justifiable force against assaultive and threatening behavior from two people, thus rendering insufficient the evidence for any criminal intent[.]

2) Was the evidence insufficient to sustain the guilty verdict for disorderly conduct as the Commonwealth failed to disprove that [Colon] used justifiable force to defend against assaultive and threatening behavior from two people, which caused a serious hip injury to [Colon][?] [Colon's] speech and conduct were reasonable and only that amount necessary to defendant against assaultive behavior, therefore the Commonwealth failed to prove that [Colon's] behavior served no legitimate purpose and that his actions were criminal[.]

3) Did [Colon's] substantive character evidence for his reputation in the community for being peaceful, law-abiding and honest, raise a reasonable doubt as to the charge of disorderly conduct?

Colon's Br. at 7.

I. Evidence of Intent Versus Self-Defense

Colon's first two issues are intertwined. He argues that the evidence was insufficient to prove he intended to cause any public inconvenience, annoyance, or alarm. Colon's Br. at 17. He contends that the video the Commonwealth introduced shows (it has no sound) that the other swimmer instigated the event by "roughly grabb[ing] his leg when he was swimming," and that he responded by telling her not to touch him. Id. (citing Exh. C-1/video at seconds 5-8 and N.T. at 43-45, 47-50). He claims that the victim then eagerly and aggressively interjected herself in the interchange, without introduction or authority, and then assaulted him by performing an "'under arm double tote' lifeguard control move." Id. at 13, 18, 21, 24. He asserts he sustained a serious hip injury during the incident. Id. at 24. Colon therefore claims that the evidence shows that he was reacting to aggression and acting in self-defense with a reasonable and understandable amount of force, rather than intending to cause any public inconvenience or alarm. Id. at 17-22.

Sufficiency of the evidence is a question of law. Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa.Super. 2019). "When reviewing a challenge to the sufficiency of the evidence, 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." Commonwealth v. Clemens, 242 A.3d 659, 664 (Pa.Super. 2020) (internal quotation marks and citation omitted). "In conducting this analysis, we do not weigh the evidence and substitute our judgment for that of the factfinder," who is "free to believe all, part, or none of the evidence." Id. at 665. We grant relief only where "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. Lynch, 242 A.3d 339, 352 (Pa.Super. 2020) (quoting Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa.Super. 2013)).

The crime of disorderly conduct, as charged here, occurs when a person, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . engages in fighting or threatening, or in violent or tumultuous behavior." 18 Pa.C.S.A. § 5503(a)(1). "Public" in this context means the person's conduct "affect[ed] or [was] likely to affect persons in a place to which the public or a substantial group has access[.]" 18 Pa.C.S.A. § 5503(c). The mens rea may be established "by a showing of a reckless disregard of the risk of public inconvenience, annoyance, or alarm, even if the [person]'s intent was to send a message to a certain individual, rather than to cause public inconvenience, annoyance, or alarm." Commonwealth v. McConnell, 244 A.3d 44, 51 (Pa.Super. 2020) (citation omitted).

A successful claim of self-defense negates the element of recklessness. Commonwealth v. Fowlin, 710 A.2d 1130, 1133 (Pa. 1998). However, a person is only justified in acting in self-defense if he "believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by [the] other person." 18 Pa.C.S.A. § 505(a). Accordingly, a defendant may use only as much force as is sufficient to repel an unlawful attack. Commonwealth v. Pollino, 467 A.2d 1298, 1300 (Pa. 1983); accord Commonwealth v. Witherspoon, 730 A.2d 496, 499 (Pa.Super. 1999). The Commonwealth bears the burden of disproving a claim of self-defense beyond a reasonable doubt. Commonwealth v. Knox, 219 A.3d 186, 196 (Pa.Super. 2019).

The Commonwealth introduced sufficient evidence to prove beyond a reasonable doubt that Colon engaged in disorderly conduct and that he did so without justification. Viewed in the light most favorable to the Commonwealth, the evidence shows that Colon loudly threatened to hurt another person while he was swimming at the YMCA. She responded verbally, and after initially retreating, Colon then approached her. He took the victim-who had not touched or threatened him-"by the throat with one hand, lifted her up and plunged her under the water." Trial Ct. Op. at 6. The evidence of these actions satisfies the element of "fighting, threatening, violence or tumultuous behavior" and displays at least a reckless disregard of the risk of "public inconvenience, annoyance, or alarm." 18 Pa.C.S.A. § 5503(a)(1).

This same evidence was also sufficient to disprove Colon's claims that his response to the alleged leg-pulling and the approach by the victim constituted proper acts of self-defense. When viewed in the Commonwealth's favor, the evidence does not demonstrate that his response was immediately necessary to protect him from unlawful force, but rather shows disproportionately excessive acts of force.

II. Character Evidence

Colon asserts that there was a stipulation between himself and the Commonwealth that the former pool director would testify that Colon had a reputation in the community for being...