J-A08013-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN PARKER : : Appellant : No. 908 EDA 2025
Appeal from the Judgment of Sentence Entered January 17, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006244-2023
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and STEVENS, P.J.E. *
MEMORANDUM BY LAZARUS, P.J.: FILED APRIL 30, 2026
Brian Parker appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following a nonjury trial after
which the Honorable Donna M. Woelpper convicted him of aggravated
assault,1 simple assault,2 possessing an instrument of crime, 3 and recklessly
endangering another person.4 After careful review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2702(a)(4).
2 Id. at § 2701(a).
3 Id. at § 907(a).
4 Id. at § 2705. J-A08013-26
On August 22, 2023, Parker, who works as a “hack,”5 dropped a friend
off at 58th and Walnut Streets after taking the friend to get his glasses fixed.
See N.T. Nonjury Trial, 11/8/24, at 43, 44. After dropping off his friend,
Parker stopped and sat outside of the Fresh Grocer grocery store located at
5601 Chestnut Street to get some fresh air. Id. at 9, 43. In video footage
captured by Fresh Grocer’s security camera, Parker is shown sitting outside
the store on top of an orange traffic barricade talking to multiple people,
including a security guard. See Defense Exhibit 1 (Exhibit D-1), at 14:02.6
Around 4:30 p.m., a man later identified as Pelgie Dixon approached a friend
of Parker’s named Troy, who was standing next to Parker. Id. at 15:15. Dixon
was wearing a backpack, as depicted in the video and testified to by Detective
Clair. See id.; N.T. Nonjury Trial, 11/8/24, at 16.
5 Parkertestified that a “hack” is like a taxi driver, stating that if someone needed a ride, he would “take them to their destination.” Id. at 44.
6 This video camera footage, along with footage from another angle, was moved into evidence by both the Commonwealth and Parker. See Exhibit List, 11/8/24. However, Parker admitted longer versions of both videos, which depict the events leading up to and after the incident, giving the events more context. See N.T. Nonjury Trial, 11/8/24, at 13. Because Parker’s videos are longer and depict more of the events that took place, we refer to these videos (marked as Defense Exhibit 2 (Exhibit D-2)) to describe the incident.
Additionally, Philadelphia Police Detective Christopher Clair testified as to both the Commonwealth and Parker’s videos. See id. at 10-12; 13. The video has no audio.
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Troy also works as a “hack,” and he and Dixon exchanged a few words.7
See Exhibit D-1, at 15:32- 16:25. Dixon then walked away. Id. at 16:25.
About five minutes later, Dixon came back into the frame and again spoke
with Troy. Id. at 20:48- 21:14; N.T. Nonjury Trial, 11/8/24, at 43-44. At
that point, Troy walked away, and Dixon turned to Parker, who had been
listening to and commenting on the conversation between Troy and Dixon.
See Exhibit D-1, at 21:19; N.T. Nonjury Trial, 11/8/24, at 44. Dixon and
Parker exchanged words, and eventually the conversation became heated.
See Exhibit D-1, at 21:20- 21:57. Dixon appears to have walked away for a
brief moment before re-approaching Parker, who was still sitting on the
barricade. See id. at 22:00. At that point, Dixon punched Parker in the face,
causing Parker to fall backwards off the barricade and hit his head on the
ground. Id. at 22:05-22:08. Parker testified that he “was unconscious for a
while,” although the video footage shows him attempting to get back to his
feet immediately after he hit the ground. Id. at 22:08; N.T. Nonjury Trial,
11/8/24, at 47. Dixon can then be seen saying something to Parker as Dixon
walked away into the parking lot. See Exhibit D-2, at 1:41-1:43.
7 Dixon likely asked Troy for a ride based on Parker’s trial testimony. See N.T. Nonjury Trial, 11/8/24, at 43. However, the Commonwealth eventually objected to those statements as hearsay, which the trial judge sustained. Id. at 44. These statements about the ride came before the statements that are at issue on appeal. Thus, for factual and evidentiary purposes, we do not speculate about the content of the conversation, we only note that words were exchanged. It is not until Parker attempted to testify as to threats that Dixon made towards him that the issue of hearsay becomes relevant to this appeal. See infra, at 4-5, 10.
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Dixon then took his backpack off and Parker began to chase him through
the parking lot. Id. at 1:44-1:46. Parker appeared to pull a gun out of his
pocket and fire multiple times at Dixon as he tried to flee; as he ran away,
Dixon stumbled multiple times. Id. at 1:47-1:56. After firing five shots,
Parker turned around, jogged away, got into his vehicle, and drove off. Id.
at 1:57-2:19; N.T. Nonjury Trial, 11/8/24, at 10. Dixon stayed in the parking
lot while his friends checked on him; a police car then drove onto the scene
and Dixon got into the back seat of the police vehicle. Exhibit D-2, at 2:20-
4:07. Medical records revealed that Dixon sustained gunshot wounds to his
left chest and left thigh. See N.T. Nonjury Trial, 11/8/24, at 35-36. Parker
suffered injuries to his face, toes, and the back of his head. Id. at 51-53.
Parker had a license to carry the firearm with which he shot Dixon. Id. at 36.
After the incident, Parker drove to his home located at 5858 Hazel
Avenue. Id. at 32, 50. At approximately 5:12 p.m., Philadelphia Police Officer
John Olesik responded to this address and found Parker sitting outside on the
steps. Id. at 32, 50. Parker told Officer Olesik what had happened at the
Fresh Grocer and handed over his firearm. Id. at 50. The police then took
Parker down to the police station. See id. at 51.
Parker was charged with the aforementioned offenses. On November
8, 2024, a nonjury trial before Judge Woelpper was held, at which Parker
testified in his own defense. See id. at 42. During his testimony, Parker
attempted to explain that Dixon had been threatening him, but the
Commonwealth objected on hearsay grounds:
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Q. [] Now, let’s move on back to you. When you did not give him a ride, what happened next[?]
A. He started telling me what he was going to do to me.
MR. FLYNN: Objection.
THE COURT: Sustained. You can’t tell us what other people said. So let Ms. Latta ask you a question.
BY MS. LATTA:
Q. So[,] there was a communication between the two of you?
A. Yes.
Q. What happened next?
A. He started threatening me.
MR. FLYNN: Objection. ...
Q. Just move on to what happened next, not what anybody said. Okay?
A. Yeah. Okay. When I told him I couldn’t take him, he told me—
Id. at 45-46. This continued until Parker’s counsel made the following
argument:
Q. And what happened next?
A. Okay. I was unconscious for a while. I got up, and he was coming across. And he said he was going to—
THE COURT: Sustained.
MS. LATTA: So, Your Honor, at this particular point, I would argue that it’s not being offered for the purpose of hearsay. It’s being offered for the effect on the listener, Your Honor. And the relevance is, it matters what he believed when he
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heard what he heard, what his state of mind is to what he had to do and what he did next. And this is a case, Your Honor, where the complaining witness is not even here. So[,] I don’t have the ability [to] cross-examine, or get out in the [p]rosecutor’s case in chief, any questions regarding anything about what happened between the two of them.
THE COURT: How do you respond, Mr. Flynn?
MR. FLYNN: Even if Mr. Dixon were here, his own statements would be hearsay. They are out-of-court statements. We have a video. Obviously, there is bad blood. Obviously, there are threats between these two gentlemen at the point where Mr. Parker arms himself. I still think those statements are inadmissible.
THE COURT: I agree. Objection sustained.
Id. at 47-48. The trial court found Parker guilty of all charges, deferred
sentencing, and ordered the preparation of a presentence investigation. On
January 17, 2025, the trial court sentenced Parker to an aggregate term of
four years’ probation. Parker filed a post-sentence motion on January 21,
2025, which the trial court subsequently denied on April 2, 2025. On April 7,
2025, Parker filed a timely notice of appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Parker presents the following issue for our review: “Did the trial court
wrongly preclude [Parker] from testifying to violent threats made by [Dixon],
which were not offered for their truth but were directly relevant to showing
[Parker]’s reasonable belief that he was justified in using deadly force in self-
defense?” Appellant’s Brief, at 2.
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Parker contends that he should have been able to testify to the
statements Dixon made before and after Dixon punched him, as the
statements were not offered for their truth, but rather for their effect on
Parker’s state of mind. Id. at 8-9. This distinction, Parker contends, classifies
the statements as non-hearsay, and thus, they should have been admissible
to show that Dixon was threatening Parker’s life, justifying Parker’s use of
deadly force. See id.
As this is a challenge to an evidentiary ruling, our standard of review is
whether the trial court abused its discretion in excluding Parker’s testimony.
See Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012).
“An abuse of discretion is ‘the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will[,] or partiality, as shown by the evidence of record.’”
Commonwealth v. Lloyd, 336 A.3d 1032, 1035 (Pa. Super. 2025) (citation
omitted).
Hearsay is defined as “a statement that (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” Pa.R.E.
801(c). Therefore, if a statement made by a declarant is not offered to prove
the truth of the matter asserted, then it is not, by definition, hearsay. See
Commonwealth v. Busanet, 54 A.3d 35, 56 (Pa. 2012). A common non-
hearsay use of a statement made by a declarant is for its effect on the listener.
“[W]here the statement is being offered to show its effect on a listener, it is
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not being offered for the truth of the matter and is non-hearsay.” Schmalz
v. Mfrs. & Traders Trust Co., 67 A.3d 800, 803 n.3. (Pa. Super. 2013).
Parker sought to admit evidence of Dixon’s statements in furtherance of
his claim of self-defense. The justified use of force in self-protection is
governed by 18 Pa.C.S.A. § 505, which provides that “[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.A.
§ 505(a). Conversely, the use of deadly force is not justified:
[U]nless 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
(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.
Id. at § 505(b)(2). The use of deadly force is defined as “force which, under
the circumstances in which it is used, is readily capable of causing death or
serious bodily injury.” Commonwealth v. Mayfield, 585 A.2d 1069, 1070
(Pa. Super. 1991) (citing 18 Pa.C.S.A. § 501). When an individual uses a gun
to defend him or herself, the individual is determined to have employed deadly
force. See Commonwealth v. Mouzon, 53 A.3d 738, 753-54 (Pa. 2012)
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(defendant used deadly force when he shot victim). The Commonwealth can
refute a claim of self-defense by showing that the defendant escalated the
altercation, or “used more force than reasonably necessary to protect against
death or serious bodily injury.” Commonwealth v. Smith, 97 A.3d 782, 788
(Pa. Super. 2014) (citation omitted).
Finally, the harmless error doctrine allows reviewing courts to overlook
non-consequential errors that the trial court may have made if those errors
would not change the outcome of the case and if it allows courts to “fulfill their
societal duty to administer justice[.]” See Commonwealth v. Taylor, 309
A.3d 754, 774 (Pa. 2024). As our Supreme Court has stated:
Harmless error exists if the state proves either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017).
Here, in its Rule 1925(a) opinion, the trial court offers almost no analysis
of the alleged hearsay statements themselves, instead asserting that Dixon’s
statements made to Parker “were unnecessary in light of the video evidence
which clearly reflected heated words. . . . The [c]ourt simply did not need to
hear the out-of-court threats to establish that [Parker] was in fear of his life.”
Trial Court Opinion, 5/30/25, at 7. After qualifying Dixon’s statements as
“unnecessary” and excluding them on hearsay grounds, the trial court wrote
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that “[n]onetheless, if the [c]ourt’s ruling were deemed erroneous, any such
error would be harmless” in light of the video evidence presented at trial. Id.
While trial courts are permitted to exercise broad discretion in
evidentiary rulings, and the statements made by Dixon in the instant case
may have been “unnecessary,” a trial court may not disregard otherwise
relevant, admissible evidence, especially when it fails to conduct a Rule 403
analysis and determine whether the statements’ prejudice outweighed their
probative value. See Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa.
2007) (“Typically, all relevant evidence, i.e., evidence which tends to make
the existence or non-existence of a material fact more or less probable, is
admissible, subject to the prejudice/probative value weighing which attends
all decisions upon admissibility.”) (citations omitted). Here, as Parker
correctly points out, the statements that Dixon made to Parker shortly before
and after Dixon punched him were not hearsay statements because Parker did
not offer them for their truth. See Schmalz, supra. Instead, he offered the
statements to demonstrate the effect that they had on his mental state, such
as why he might have been fearful for his life.
This assertion is evidenced by one of the first instances where Parker
attempts to describe his interaction with Dixon: “Q: Okay. . . . When you did
not give him a ride, what happened next[?]; A: He started telling me what
he was going to do to me.” N.T. Nonjury Trial, 11/8/24, at 45. At this point,
the Commonwealth objected to the statement as hearsay, and the objection
was sustained. See id. This pattern of question, attempt to answer, and
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objection continued for two more pages of testimony, until Parker’s counsel
argued that Dixon’s statements were not being offered for their truth, but
rather for their effect on Parker’s state of mind. See id. at 45-47. In
response, the Commonwealth asserted that, even if Dixon were in court to
testify to his own statements, the statements would still be hearsay because
they are out-of-court statements. See id. at 48. The court agreed, and the
objections were sustained. Id.
However, as noted above, just because statements are made out-of-
court does not make them hearsay; they must also be offered for the truth of
the matter asserted. See Busanet, supra. Thus, the trial court misapplied
the law in barring Parker from testifying about the alleged threats that Dixon
made to him both before and after Dixon punched him. In incorrectly applying
Rule 801(c), the trial court abused its discretion by excluding otherwise
admissible testimony that was relevant to Parker’s state of mind at the time
of the incident.8 See Dillon, supra. As a result, the trial court erred in
prohibiting Parker’s testimony about Dixon’s alleged threats.
Nevertheless, we agree with the trial court that, regardless of whether
Parker’s testimony was improperly excluded, the Commonwealth presented
overwhelming evidence to enable the court, as finder of fact, to conclude that ____________________________________________
8 Neither Parker nor the Commonwealth address the probative value versus
prejudicial effect of Dixon’s statements, likely because the trial court excluded them on hearsay grounds and never performed a Rule 403 balancing test. In any event, given our analysis, infra at 12, the balance between the statements’ probative value and prejudicial effect is irrelevant to our ultimate determination. See N.T. Nonjury Trial, 11/8/24, at 45-48; Pa.R.E. 403.
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Parker did not act in reasonable fear for his life. As Detective Clair testified,
the video that captured the incident shows Dixon walking away from the
grocery store after he punched Parker. See N.T. Nonjury Trial, 11/8/24, at
12. Thereafter, Parker “gives pursuit” while firing his gun at Dixon. Id. The
fact that Parker pursued Dixon after Dixon walked away demonstrates that
Parker was not acting in self-defense; rather, Parker was escalating the
situation, see Smith, supra, which nullifies his self-defense claim.
Additionally, Dixon’s bookbag, which held the alleged weapon that
Parker claimed Dixon possessed and threatened him with, was not in Dixon’s
possession when Parker shot him. See N.T. Nonjury Trial, 11/8/24, at 23-24.
Thus, even if Parker initially thought that he had reason to fear for his life, the
video evidence, along with Parker’s testimony that he believed Dixon’s weapon
was in his backpack, refutes Parker’s belief that he was threatened with
immediate harm at the moment he shot Dixon. See id. at 54-55; 18 Pa.C.S.A.
§ 505(a) (implementing immediacy requirement for justified force used in self-
protection).
Finally, the trial court could reasonably have found, based on the video
evidence, that Parker could have retreated into the grocery store. This would
also undermine his claim of justified use of deadly force in self-protection.
See 18 Pa.C.S.A. § 505(b)(2)(ii). The video showed Parker sitting outside of
the Fresh Grocer, with no one behind him blocking his retreat into that store.
See N.T. Nonjury Trial, 11/8/24, at 55-56. Although Parker had just been
punched by Dixon, Dixon began to leave the scene, and instead of seeking
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assistance from authorities, or retreating into the store where he likely would
have been safer, Parker chose to actively pursue Dixon and discharge the
weapon toward him. See id. at 11-12. This action clearly contradicts the
purpose of subsection 505(b)(2)(ii), and, thus, Parker is not warranted in
using deadly force in self-defense. As such, there was clear evidence that
Parker did not act in accordance with the law, regardless of whether Dixon’s
statements caused Parker to fear for his life. Therefore, the trial court
correctly concluded that any evidentiary error was harmless. See Burno,
supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Date: 4/30/2026
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