Com. v. McKinnon, M. ( 2023 )

J-S45027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL MCKINNON :
:
Appellant : No. 1722 EDA 2022
Appeal from the Judgment of Sentence Entered February 15, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001240-2021
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2023
Appellant Michael McKinnon appeals from the February 15, 2022
judgment of sentence entered in the Court of Common Pleas of Philadelphia
County (“trial court”), following his bench conviction for strangulation, simple
assault, and recklessly endangering another person (“REAP”).1 Upon review,
we affirm.
The facts and procedural history of this case are undisputed. As detailed
by the trial court:
On December 11, 2020, [Appellant] and his intimate partner of
three years, [G.B.], began to argue after they were involved in a
car accident. [G.B.] was the driver and [Appellant] was a
passenger in the car on the way to pick up their two friends when
they were involved in the accident. After the accident, [G.B.],
[Appellant], and the two friends drove to [G.B.’s] home at [] South
Bembrey Street in Philadelphia. [G.B.] attempted to arrange
picking up a rental car. While [G.B.] made these arrangements,
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1 18 Pa.C.S.A. §§ 2718(a)(1), 2701(a), and 2705, respectively.
J-S45027-22
[Appellant] went around the block to a corner store that sells
liquor shots. He came back to the house from the corner store
with a “grisly” look on his face, indicating to [G.B.] that he had
recently drank liquor.
[Appellant] called [G.B.] a bitch and said he was going to tell the
insurance company the accident was her fault. [G.B.] called
[Appellant] a drunk and then drove, with [Appellant] in the car,
her two friends back to their house. During the car ride back to
her house on Bembrey Street, [G.B.] called her sister and spoke
with her through a Bluetooth device, telling her sister that
[Appellant] had been drinking and that she was going to go to her
bedroom when she arrived at home because she “knew where this
[was] heading.” Upon their return to [G.B.’s] house, [Appellant]
went inside ahead of [G.B.]. Shortly after, [G.B.] followed
[Appellant] inside. She locked the door, turned around, and
[Appellant] punched her once in the chest. [G.B.] was still on the
phone with her sister when this happened.
Next, [Appellant] grabbed [G.B.’s] shirt and threw her to the floor.
[G.B.’s] wallet fell from her back pocket when [Appellant] threw
her down. [G.B.] testified that [Appellant] took her phone and
threw it across her living room, with the phone landing in between
her sofa and her table. [G.B.] and [Appellant] grabbed for the
wallet at the same time. [G.B.] testified that while attempting to
get the wallet from [G.B.’s] hands, [Appellant] dragged [G.B.] by
her arms from the front door to the kitchen area.
[G.B.] testified that [Appellant] sat on her back and pressed his
forearm around her throat and neck. [G.B.] started to see spots
and was afraid [Appellant] was going to kill her. [G.B.], despite
being choked, was able to tell [Appellant] three times that she
could not breathe. During the struggle, [Appellant] threatened to
bite [G.B.] causing her to drop the wallet. Eventually, [Appellant]
stopped choking [G.B.]. Knowing that [G.B.] has asthma,
[Appellant] retrieved her inhaler, and tossed it on the ground next
to her. [Appellant] obtained the wallet and took $200 out that he
had given her earlier that day. [Appellant] left the house with
[G.B.] still on the ground.
[G.B.] testified that her sister called the police who arrived after
[Appellant] left. [G.B.] testified that paramedics arrived after the
police and gave her a “breathing treatment.” After, she went to
the police district and gave a statement to detectives about the
incident. She did not go to the hospital or photograph her injuries,
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but she testified that she had some bruising on her chest area.
[G.B.] explained that she did not want to be photographed or seek
medical treatment because it was upsetting and embarrassing.
The next day, [Appellant] came back to [G.B.’s] house to bring
back the $200 and a pair of shoes that she had gifted him. Two
days after that, [Appellant] called [G.B.] complaining that he was
struggling because he did not have access to his medication and
that he was hungry. [G.B.] testified that, despite what [Appellant]
had done to her, she did not want to see him suffer so she dropped
off a bowl of spaghetti for him at his house.
[G.B.’s] sister, [J.W.], testified that she was on the phone with
[G.B.] during this altercation. She testified that the phone call
went from a calm conversation to stressful after [Appellant] began
to curse at [G.B.] and call her a bitch. Eventually, the call ended
and [J.W.] dialed 911 because of what she was hearing over the
phone.
Trial Court Opinion, 8/22/22, at 1-3 (record citations omitted). Appellant was
charged with and convicted of the above-referenced crimes.2 On February 15,
2022, the trial court sentenced Appellant to three and one-half to seven years’
imprisonment for strangulation, followed by consecutive two-year
probationary terms for simple assault and REAP. On February 24, 2022,
Appellant post-sentence motions, which were denied by operation of law June
27, 2022. See Pa.R.Crim.P. 720(B)(3)(c). Appellant timely appealed. The
trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Appellant complied. In response, the trial court
issued a Pa.R.A.P. 1925(a) opinion.
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2 The trial court found Appellant not guilty of theft by unlawful taking –
movable property (18 Pa.C.S.A. § 3921(a)) and receiving stolen property (18
Pa.C.S.A. § 3925(a)).
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On appeal, Appellant argues only that his conviction for strangulation
was not supported by sufficient evidence. Appellant’s Brief at 3. In particular,
he argues that “there was insufficient evidence that he impeded [G.B.’s]
breathing either knowingly or intentionally, the requisite mens rea under 18
Pa.C.S.A. § 2718.” Id.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence
is 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. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder 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. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
Section 2718(a)(1) of the Pennsylvania Crimes Code states, “[a] person
commits the offense of strangulation if the person knowingly or intentionally
impedes the breathing or circulation of the blood of another person by []
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applying pressure to the throat or neck.” 18 Pa.C.S.A. § 2718(a)(1). The
“[i]nfliction of a physical injury to a victim [is] not [] an element of the
offense.” Id. at § 2718(b) (stating, “[t]he lack of physical injury to a victim
shall not be a defense in a prosecution under this section”).
The Crimes Code defines the terms “knowingly,” and “intentionally” as
follows:
§ 302. General requirements of culpability
...
(b) Kinds of culpability defined.--
(1) A person acts intentionally with respect to a material element
of an offense when:
(i) if the element involves the nature of his conduct or
a result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(2) A person acts knowingly with respect to a material element of
an offense when:
(i) if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
(ii) if the element involves a result of his conduct, he
is aware that it is practically certain that his conduct
will cause such a result.
18 Pa.C.S.A. § 302(b)(1-2). “[I]ntent can be proven by direct or
circumstantial evidence; it may be inferred from acts or conduct or from the
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attendant circumstances.” Commonwealth v. Miller, 172 A.3d 632, 641
(Pa. Super. 2017) (citation and original quotation marks omitted), appeal
denied, 183 A.3d 970 (Pa. 2018).
Based on our review of the record, as detailed above, and given the
totality of the circumstances, we agree with the trial court’s conclusion that,
viewed in a light most favorable to the Commonwealth, the evidence
establishes that the Commonwealth proved beyond a reasonable doubt that
Appellant was guilty of strangulation. As the trial court reasoned:
[T]here was sufficient evidence to convict [Appellant] of
strangulation beyond a reasonable doubt because the trial court
determined that [G.B.’s] testimony was credible. This credible
testimony described an intentional choke.[3] Appellant was sitting
on [G.B.’s] back, pressuring his forearm against her throat and
neck area. The Commonwealth and [G.B.] both explicitly used
the word “choke” or “choking” numerous times during [G.B.’s]
direct examination. [G.B.] began to see spots during the choke
and felt as if she was going to die. [G.B.] told Appellant that she
could not breathe three times. [She] recalled that she was unable
to protest loudly because she “didn’t have much breath.” [G.B.],
during her testimony, questioned why her partner would choke
her in this manner when Appellant knew [G.B.] had asthma.
Appellant impeded [G.B.’s] breathing to the point that she needed
to use her inhaler and receive breathing treatment from
paramedics. Appellant’s choke was not merely incidental to the
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3 To the extent Appellant invites us to accept his preferred version of the
events (that because he eventually ceased choking her after she told him
thrice she could not breathe, he merely acted recklessly), we decline the
invitation. It is settled that we may not substitute our judgment for that of
the factfinder—whether a jury or the trial court—because it is the province of
the factfinder to assess the credibility of the witnesses and evidence. See
Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004);
Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate
court is barred from substituting its judgment for that of the finder of fact.”);
see also Antidormi, supra.-6-
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struggle for the wallet. Appellant’s conduct was not negligent or
reckless, but rather an intentional impediment of [G.B.’s]
breathing. There is sufficient and credible evidence
demonstrating that Appellant’s conduct was intentional, fulfilling
the requisite mens rea in the strangulation statute.
Trial Court Opinion, 8/22/22, at 5-6 (record citations omitted). The record is
clear that Appellant sat on G.B.’s back and pressed his forearm around her
throat and neck. G.B., whom Appellant knows to be asthmatic, started to see
spots and was afraid that Appellant was going to kill her. Despite being
choked, and with what breath she could muster, G.B. had to tell Appellant
three times that she could not breathe. Accordingly, we agree with the trial
court’s conclusion that, viewed in a light most favorable to the
Commonwealth, the evidence establishes that the Commonwealth proved
beyond a reasonable doubt that Appellant committed strangulation. Appellant
obtains no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2023
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