Com. v. McWaters, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOMAS MCWATERS :
:
Appellant : No. 1059 EDA 2020
Appeal from the Judgment of Sentence Entered February 21, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000487-2019
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 27, 2021
Tomas McWaters appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his convictions, after
a non-jury trial, of strangulation,1 simple assault,2 and recklessly endangering
another person (REAP).3 McWaters challenges the weight and sufficiency of
the evidence to support his convictions. Upon careful review, we affirm.
This case arises from an altercation that occurred between McWaters
and the complainant, Yavah Briggs, on November 1, 2018. The trial court
summarized the facts as follows:
[McWaters] and [Briggs] [] were once romantic partners who
share a child. On the afternoon of November 1, 2018, [Briggs]
____________________________________________
1 18 Pa.C.S.A. § 2718(a)(1).
2 18 Pa.C.S.A. § 2701(a).
3 18 Pa.C.S.A. § 2705.
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was living with [McWaters] at 1735 North 53rd Street in the City
and County of Philadelphia. After entering the house and greeting
Malcolm, [McWaters’] grandmother’s boyfriend and Mikkell
Brooks, [McWaters’] Uncle (“Brooks”), [Briggs] went upstairs and
tried to open the door to [McWaters’] bedroom as she “normally
would.” [Briggs] found the door locked and called to [McWaters]
to open it. [McWaters] asked who was there, and [Briggs]
responded that she had their baby and wanted to set the child
down to avoid dropping her. From behind the locked door,
[Briggs] heard the voice of Chanelle Adechokan [], whom she
knew from their work together in the army. [Briggs] told
[McWaters] she did not “care what [he was] doing” and to “just
let [her] come in and get [her] things and set the baby down.”
[Briggs] heard the door unlock, and when she attempted to open
it, someone was pushing back against it. [Briggs] worked her foot
between the crack of the door and reminded [McWaters] for a
third time that all she wanted was to set their baby down and get
her bag. [McWaters] pushed back on the door with so much force
that [Briggs] shouted that she was worried [McWaters] would
break her foot. Adechokan told [Briggs] to wait “a damn
minute[],” and continued to hold the door to prevent [Briggs] from
entering.
When [McWaters] and Adechokan pushed back on the door again,
[Briggs] nearly dropped her baby. Consequently, [Briggs] and
Adechokan got into a verbal and physical altercation through the
small crack in the door. In response, [McWaters] swung his arm
through the crack and punched [Briggs] in the face. After [Briggs]
finally struggled her way into the room to get her things, she
managed to set down their baby on [McWaters’] bed just before
[McWaters] “charged at [her]” and shoved her into the closet
where she fell into a pile of wire hangers. While the hangers
tugged and scratched [Briggs’] skin, [McWaters] tried to “stomp
[her] face in the ground.” As [Briggs] struggled to get up,
[McWaters] grabbed her by the neck, pulled her to the ground,
and strangled her[. Briggs] testified that she could not breathe
for “about three, four seconds.”
Once [Briggs] was able to stand again, [McWaters] grabbed her
by her neck, picked her up, and “choked[-]slammed her to the
ground” where she landed hard on her back. [Briggs] could not
breathe for “about five seconds this [second] time.” [Briggs]
smacked [McWaters] across the face and Adechokan called
[Briggs] “disrespectful” for slapping [McWaters] and threatened
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to “knock [Briggs] the F out.” [Briggs] then lashed out and
attempted to hit Adechokan, but was yanked back by [McWaters].
The baby was on the bed during this altercation until Brooks finally
came and removed her from the room.
Malcolm told Adechokan to leave the house and advised [Briggs]
to “stop putting [her] hands on [McWaters because] he’s a man.
At some point in time[,] he’s going to get angry.” [McWaters]
followed Adechokan outside the house, and [Briggs] followed
[McWaters]. As they were arguing outside, [McWaters] continued
to antagonize [Briggs] by pulling and dragging her around. To
resist [McWaters], [Briggs] held onto a pillar supporting the roof
on the porch, and [McWaters] “tr[ied] to yank [her] off...”
[Briggs] told [McWaters] to “stop pulling [her before he] break[s]
[her] arm,” and [McWaters] ignored her. [Briggs] pleaded with
[McWaters] to “go and check on the baby” to no avail. When
[McWaters] finally let her go, [Briggs] went inside alone to retrieve
their baby from Brooks and gather her belongings.
[Briggs] returned inside, and Malcolm handed her a phone to talk
to [McWaters’] grandmother, Sherye Robbins []. Robbins asked
[Briggs] what was going on at the house, and [Briggs] responded
that [McWaters] was cheating on her, she’s “never coming back
here,” and she would not be leaving their baby at [McWaters’]
house any longer. Robbins testified she could hear in the
background “hollering, screaming, that ‘I’m going to get you.’”
After returning the phone to Malcolm, who went back outside,
[Briggs] saw [McWaters] leaning on the passenger’s side window
of Adechokan’s car. [Briggs] approached to ask why [McWaters]
was “so worried about [Adechokan]” when his daughter was inside
and had just been nearly injured by his attack. Seeing [Briggs]
walk towards the car, Adechokan suddenly tried to “pull off and
almost hit [Briggs] with her car.” [McWaters] then “ran around
the car and grabbed [Briggs] from behind,” hooking his elbow
around her neck. [McWaters] strangled her a third time for “ten
to fifteen” seconds, making this attack “one of the longest times
he was choking [her].” When [McWaters] let [Briggs] go, she “had
to really catch her breath.” Adechokan got out of her car and
continued to accost and attempt to assault her, forcing [Briggs]
to “move so [Adechokan] wouldn't hit [her],” and eventually she
got back in her car and sped off.
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[McWaters] then grabbed [Briggs] by the head and shoved her
backwards. [Briggs] pushed [McWaters] back and “he got upset.”
[McWaters] grabbed [Briggs] by the neck for the fourth time and
slammed her into a metal box on a utility pole. [McWaters]
strangled [Briggs] for “maybe seven, eight seconds” against the
pole before finally letting her go. [McWaters] and Malcolm went
back inside the house, leaving [Briggs] alone to stumble back
inside, dizzy from the impact and feeling as though she “was going
to pas[s] out.”
After catching her breath, [Briggs] again tried to collect her and
the baby’s belongings from [McWaters’] room, but [McWaters]
was constantly “getting in her way.” [Briggs] tried to use her
elbow to keep him away, but [McWaters] pushed her around his
room, shoving her into the desk in the [corner]. When [Briggs]
got up, [McWaters] pushed her again and slammed her down onto
his bed, strangling her for the fifth and final time with one hand
while raising the other as if to punch her. [Briggs] could not
determine how long [McWaters] strangled her, but she could not
breathe the entire time [McWaters] had his hand wrapped around
her neck. Cumulatively, [McWaters] strangled [Briggs] and
obstructed her breathing for over twenty-five seconds. After this
final attack, [Briggs] was able to finish packing up her belongings,
get the baby from Brooks, and leave the [McWaters] house.
Brooks helped [Briggs] carry her belongings outside and loaded
her car. Before [Briggs] left to go to her mother’s, Brooks
apologized to her, expressing sorrow she “had to go through this.”
Once at her mother’s house, [Briggs] told her what [McWaters]
had done. [Briggs’] mother called the police twice that day, being
told both times that “somebody was coming out[, but] they never
did.” The next morning, [Briggs] went to the hospital, where the
police were called again and finally came to take a report.
[Briggs’] injuries included bruises, abrasions, and scratches.
[Briggs] told doctors she felt “dizzy, nauseous, and [she] had a
really[,] really bad headache.” Additionally, she “really couldn’t
move” because her body was so sore from the beatings. Doctors
diagnosed [Briggs] with a concussion and told her she was “badly
bruised internally.” [Briggs] suffered dizziness, nausea, and
headaches for “maybe a week and a half [to] two weeks…” after
the attacks. [Briggs] was also put on a “dead man’s profile” at
her army job, meaning she could not do any “vigorous work” and
[was] barred from completing her physical training. [Briggs] took
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photographs of her injuries within a week of the assault which the
Commonwealth entered into evidence without objection. The
Commonwealth also entered [Briggs’] medical records, showing
her concussion diagnosis and the extent of her other injuries,
without objection.
Trial Court Opinion, 9/1/20, at 1-6 (internal citations omitted).
The matter proceeded to a bench trial on November 1, 2019, after which
the trial court found McWaters guilty of strangulation, simple assault, and
REAP. On February 21, 2020, the court sentenced McWaters to eighteen to
thirty-six months’ incarceration and imposed a stay-away order against him
with regard to Briggs. McWaters filed a timely notice of appeal and Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. McWaters
raises the following issues for our review:
1. Was the evidence insufficient to sustain the guilty verdicts for
strangulation, simple assault[,] and REAP, as [Briggs] was the
aggressor throughout the altercation, did not have permission
to be in the home at the time when she attacked [McWaters]
and [Adechoken], and [McWaters] was attempting to restrain
[Briggs] from attacking him and [Adechoken], using
reasonable and lawful force to defend himself and [Adechoken]
while in his own home?
2. Were the guilty verdicts for strangulation, simple assault and
REAP against the weight of the evidence as the evidence at
trial was that [Briggs] was the aggressor who attacked
[McWaters] and [Adechoken] while [McWaters] was using
reasonable and justified force to restrain [Briggs] from
physically attacking [McWaters] and [Adechoken]?
Brief of Appellant, at 7 (reordered for ease of disposition).
With regard to McWaters’ sufficiency of the evidence claim, we note our
standard of review: we must determine whether the trier of fact could have
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established every element of each crime with which the defendant was
charged beyond a reasonable doubt. Commonwealth v. Swann, 635 A.2d
1103, 1104 (Pa. Super. 1994). In doing so, we view the evidence in the light
most favorable to the verdict winner, giving the Commonwealth the benefit of
all reasonable inferences to be drawn therefrom; we will not re-weigh the
evidence and substitute our judgment for that of the fact-finder. Rivera,
supra at 495; Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super.
2014). Further, the Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt through wholly circumstantial
evidence. Commonwealth v. Glass, 200 A.3d 477, 490 (Pa. Super. 2018),
citing Melvin, supra at 39-40. The Commonwealth need not, however,
preclude every possibility of the defendant’s innocence. Id. The factfinder
may resolve any doubts surrounding a defendant’s guilt 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. Id. In doing so, the factfinder
must evaluate the entire record and consider all evidence received, and
remains free to believe all, part, or none of the evidence. Id.
McWaters argues that the evidence was insufficient to sustain his
strangulation, simple assault, and REAP convictions because Briggs was the
initial aggressor throughout the altercation and had no permission to be in the
residence. See Brief of Appellant, at 20. McWaters further contends that
Briggs was the one who attacked him, and that he was merely using
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“reasonable and lawful force” in defending Adechokan and himself in
attempting to restrain Briggs. Id.
A person commits strangulation when he knowingly or intentionally
impedes another person’s breathing or circulation by applying pressure to that
person’s throat or neck. 18 Pa.C.S.A. § 2718(a)(1). A person commits simple
assault if he “attempts to cause or intentionally, knowingly[,] or recklessly
causes bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). Bodily injury is
an “impairment of physical condition or pain.” 18 Pa.C.S.A. § 2301. Finally,
a person commits REAP, a second-degree misdemeanor, by recklessly
engaging in conduct that places or may place another person in danger of
death or serious bodily injury. 18 Pa.C.S.A. § 2705. Serious bodily injury
constitutes that which creates a substantial risk of death, serious and
permanent disfigurement, or the protracted loss or impairment of any bodily
member or organ’s function. Id. REAP is a crime directed against reckless
conduct that poses a serious risk “to life or limb [that is] out of proportion to
any utility the conduct may have.” Commonwealth v. Vogelsong, 90 A.3d
717, 719 (Pa. Super. 2014). REAP is a crime of assault, the mens rea for
which requires a conscious disregard of a known risk of death or great bodily
harm. Commonwealth v. Hopkins, 747 A.2d 910, 916 (Pa. Super. 2000);
Commonwealth v. Trowbridge, 395 A.2d 1337, 1339 (Pa. Super. 1978).
Viewing the evidence in the light most favorable to the Commonwealth
as verdict-winner, the record establishes that McWaters punched Briggs in the
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face, choked Briggs for three or four seconds, shoved Briggs, and attempted
to stomp her face into the ground. N.T. Waiver Trial, 11/1/19, at 18-24. While
Briggs fought with Adechokan, and again as Briggs attempted to leave,
McWaters choked Briggs for ten to fifteen seconds, during which Briggs was
unable to breathe. Id. at 25, 32. Outside, McWaters pushed Briggs’ head
with his hands. Id. at 33-35. As Briggs attempted to fight back, McWaters
pushed Briggs against a utility pole and choked her for seven or eight seconds.
Id. After Briggs went back into the house to retrieve her baby and belongings,
they began fighting again. Id. at 37-38. McWaters shoved Briggs into a desk
and swung and slammed her onto the bed, where he choked and punched her.
Id. The next morning, Briggs went to the hospital where she was diagnosed
with a concussion, abrasions, and internal bleeding. Id. at 42-43. Briggs’
symptoms lasted one to two weeks, and she was given physical
accommodations at work as a result of her injuries. Id. 43-44.
The evidence of record demonstrates that McWaters knowingly or
intentionally impeded Briggs’ ability to breathe numerous times by choking
her for extended periods of time. The evidence is therefore sufficient to
support his strangulation verdict. See 18 Pa.C.S.A. § 2718(a)(1). We agree
with the trial court that McWaters’ repeated instigation of the brutal violence,
paired with the extent of the injuries he caused Briggs, establish sufficient
evidence of his intent to cause bodily harm via strangulation. See Trial Court
Opinion 9/1/20, at 8; see also Glass, supra. Accordingly, we reject
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McWaters’ argument that Briggs was the initial aggressor, and we conclude
the evidence is sufficient to support McWaters’ guilt with respect to
strangulation and simple assault. See Swann, supra.With respect to McWaters’ REAP conviction, his repeated strangulation
and closed-fist striking of Briggs demonstrate his intent to cause Briggs
serious bodily injury, satisfying the mens rea requirement of recklessness
necessary for conviction under 18 Pa.C.S.A. § 2705. See Hopkins, supra747 A.2d at 916. Accordingly, the evidence is sufficient to uphold McWaters’
REAP conviction as well. See Swann, supra.Turning to McWaters’ weight of the evidence claim, it is well-settled that
such claims must first be raised with the trial judge. Pa.R.Crim.P. 607.
Appellants must preserve weight claims in a post-sentence motion, by a
written motion before sentencing, or orally prior to sentencing. Id.;
Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure
to properly preserve the claim will result in its waiver, even if the trial court
addresses the issue in its opinion. Commonwealth v. Rivera, 238 A.3d 482,
497 (Pa. Super. 2020) (emphasis added), citing Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009).
Here, McWaters never filed a post-sentence motion or challenged the
weight of the evidence before the trial court, either orally or in writing.
Accordingly, by failing to preserve his weight claim under Rule 607, McWaters
has waived it. We therefore reject McWaters’ request that this Court consider
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this issue “in the interest of justice and judicial economy.”4 See Rivera,
supra. This claim has been waived, and thus we will not consider it.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2021
____________________________________________
4 McWaters argues that although trial counsel did not file post-sentence
motions attacking the weight of evidence claim, McWaters raised the issue in
his Rule 1925(b) statement, the trial court thoroughly considered it in its
opinion and district attorney’s brief, and that this Court should therefore
consider this issue “in the interest of justice and judicial economy.” Reply
Brief of Appellant, at 5.
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