Com. v. McNeil, S. ( 2021 )

J-S14029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHELTON S. MCNEIL :
:
Appellant : No. 1422 MDA 2020
Appeal from the Judgment of Sentence Entered October 6, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000832-2019
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED: JUNE 21, 2021
Appellant Shelton S. McNeil appeals from the Judgment of Sentence of
four to eight years’ incarceration imposed after a jury convicted him of
Strangulation, graded as a second-degree felony.1 He challenges the
sufficiency and weight of the evidence. After careful review, we affirm.
We glean the following factual and procedural history from the trial
court’s Opinion, which is supported by the certified record. See Tr. Ct. Op,
filed Jan. 20, 2021. On December 25, 2018, a man called police at 4:45 AM
from 2015 Market Street in Harrisburg to report a domestic disturbance in a
neighboring apartment. When Corporal Matthew Novchich arrived at the
building, Audrey Blackstone approached him on the street holding a napkin to
her neck over a puncture wound. She was very upset, and had blood on her
____________________________________________
1 18 Pa.C.S. § 2718(a)(1), (d)(2).
J-S14029-21
shirt, swelling and scratches on her face, and redness around her neck. She
told Corporal Novchich that Appellant, whom she had recently dated, had
stabbed and strangled her after she voluntarily let him into her house. She
indicated that he may still be in the apartment. Appellant had fled but
Corporal Novchich noticed that the apartment was “torn up and belongings
had been thrown around.” Tr. Ct. Op. at 3 (citing N.T.). EMS transported Ms.
Blackstone to the hospital.
Corporal Novchich interviewed Ms. Blackstone at the hospital, where he
noticed that in addition to the blood stains on her shirt, dried blood on her
face and mouth, and a puncture wound below her left ear, she had redness
on her neck and visibly red eyes with broken capillaries. Her medical records
indicated, among other injuries, that she had strangulation marks on her neck.
Ms. Blackstone signed a domestic violence statement and a strangulation
questionnaire that night, in which she stated, among other things, that
Appellant had used two hands to choke her for approximately two minutes so
that she could not breath, almost lost consciousness, and felt like her eyes
were bulging out of her head. She obtained a Protection from Abuse Order
(“PFA”) against Appellant after the incident.
The Commonwealth charged Appellant with Strangulation and
Aggravated Assault. On August 17, 2020, a one-day jury trial proceeded at
which Ms. Blackstone, Corporal Novchich, and Appellant testified. The court
admitted photographs of Ms. Blackstone’s injuries, medical records, domestic
violence statement, strangulation questionnaire, and PFA application. The
-2-
J-S14029-21
court informed the jury of Ms. Blackstone’s prior crimen falsi conviction for
fraudulently obtaining drugs. Appellant testified that he never assaulted Ms.
Blackstone.
The jury found Appellant guilty of Strangulation but could not reach a
verdict on the Aggravated Assault charge. The court ordered a pre-sentence
investigation.
On October 6, 2020, the court sentenced Appellant to four to eight
years’ incarceration. Appellant filed a Post-Sentence Motion, which the court
denied.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. The court filed a responsive Rule 1925(a) Opinion.
Appellant presents the following Statement of Questions Presented:
1. Whether the evidence at trial was insufficient to prove
Appellant strangled Audrey Blackstone where the
Commonwealth failed to prove beyond a reasonable doubt
Appellant knowingly or intentionally impeded Audrey
Blackstone’s breathing by applying pressure to the throat or
neck and that Appellant was a family or household member.
2. Whether the trial court erred when it denied Appellant’s Post-
Sentence Motion because the verdict was so contrary to the
weight of the evidence as to shock one’s sense of justice[.]
Appellant’s Br. at 5.
Appellant first challenges the sufficiency of the evidence supporting his
Strangulation conviction. Id. at 12-14. He specifically contends that the
Commonwealth failed to prove that Appellant was a household member to
-3-
J-S14029-21
support the grading of the offense as a second-degree felony. Id. This
challenge has no merit.
When reviewing a challenge to the sufficiency of the evidence, our
standard is well-settled. We review the evidence in the light most favorable
to the verdict winner, giving that party the benefit of all reasonable inferences
drawn from the evidence. Commonwealth v. Alford, 880 A.2d 666, 669-
670 (Pa. Super. 2005).
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. Tejada, 107 A.3d 788, 792-793 (Pa. Super. 2015)
(citation omitted).
Pursuant to 18 Pa.C.S. § 2718(a), “[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: (1) applying pressure to the
throat or neck; or (2) blocking the nose and mouth of the person.” The
“[i]nfliction of a physical injury to a victim shall not be an element of the
-4-
J-S14029-21
offense[,]” and “[t]he lack of physical injury to a victim shall not be a
defense[.]” 18 Pa.C.S. § 2718(b).
It is well-established that a victim's testimony alone can be sufficient to
sustain a conviction. Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa.
Super. 2018) . “[A] solitary witness's testimony may establish every element
of a crime, assuming that it speaks to each element, directly and/or by rational
inference.” Id. (italics omitted).
Pursuant to 18 Pa.C.S. § 2718(d)(2)(i), Strangulation is graded as a
second-degree felony when it is committed “against a family or household
member, as defined in 23 Pa.C.S. § 6102.” Section 6102 defines “Family or
household members” as, inter alia, “current or former sexual or intimate
partners[.]” 23 Pa.C.S. § 6102. There is no specific length of time or number
of sexual encounters specified in the definition and case law does not interpret
the statute as imposing such. See, e.g., Evans v. Braun, 12 A.3d 395, 399
(Pa. Super. 2010) (where victim and abuser “mutually chose” to enter a
“dating relationship” which involved “romantic bond,” evidence was sufficient
to prove they were current or former sexual or intimate
partners under Section 6102(a)); D.H. v. B.O., 734 A.2d 409, 410 (Pa. Super.
1999) (stating that parties who were in a month-long sexual relationship fell
within Section 6102(a)’s definition of a family or household member).
The bulk of Appellant’s sufficiency argument is that the evidence does
not support the grading of the offense as a second-degree felony. Appellant
-5-
J-S14029-21
avers that “[o]ne sexual encounter is not sufficient to prove Ms. Blackstone
and [Appellant] were intimate or sexual partners or a couple as required by
23 Pa.C.S. § 6102.” Appellant’s Br. at 13. He contends, with reference to the
Merriam-Webster dictionary but not one citation to relevant case law, that “an
on-and-off again relationship, or a terminated relationship is not sufficient to
establish Ms. Blackstone and [Appellant] were intimate or sexual partners[.]”
Id. at 13-14. Appellant’s argument has no basis in fact or law.
The trial court addressed Appellant’s grading contention as follows:
The Commonwealth presented evidence through Ms. Blackstone
that proved Appellant and Ms. Blackstone had been dating for
approximately two months at the time of the incident and that
they had an intimate relationship. (N.T., 20-21). This assertion
remained consistent through Ms. Blackstone’s statement to police,
both oral and written, and her trial testimony. (N.T., 20-21, 47-
48). On cross examination, Ms. Blackstone reiterated the nature
of her relationship with Appellant by reading her answer to this
question from her statement to Corporal Novchich. (N.T., 45, 47-
48). Ms. Blackstone’s statement stated that she and Appellant
had a sexual relationship. (N.T., 47-48). The definition of a family
or household member includes those in a sexual or intimate
relationship. See 23 Pa.C.S. § 6102.
Tr. Ct. Op. at 8.
In addition to the evidence noted by the trial court, our review of
Appellant’s testimony reveals that he also acknowledged that he had had an
intimate relationship with Ms. Blackstone. See N.T. Trial at 106-111 (stating
(1) they knew each other during childhood, reconnected 20 years later in a
bar on November 7, 2018, started “just talking, like friends[, a]nd then after
like a week we just started getting a little closer;” (2) the relationship lasted
-6-
J-S14029-21
“no more than a month[;]” (3) he “was trying to be away from her until she
“called [him] one time and said that she was pregnant[;]” and (4) he went to
her house at “almost four” on Christmas morning because she had “called at
three something in the morning saying that she was being following by
somebody” and he “[didn’t] want to regret not protecting not only her but the
child also.”). Appellant’s own testimony belies his claim that he was not an
“intimate or sexual partner” as defined in the statute and the relevant case
law noted above.
Aside from challenging the grading of the offense, Appellant does not
address the elements of the Strangulation offense itself. Rather, he contends
that “enlarged photos that display scratches on one side of Ms. Blackstone’s
neck, along with testimony completely different [from] her sworn statement
to police” and her statement used to obtain the PFA Order “is insufficient to
prove the charge of [S]trangulation beyond a reasonable doubt.” Appellant’s
Br. at 14. This argument challenges the weight the jury gave to the evidence
and its credibility determinations; it does not challenge the sufficiency of the
evidence supporting Appellant’s conviction of the Strangulation offense.
Accordingly, Appellant’s claim that the evidence was insufficient to show that
he strangled Ms. Blackstone is waived and his challenge to the sufficiency of
the evidence supporting the grading of the offense is without merit.
Appellant next challenges the weight of the evidence when he asserts
that “Ms. Blackstone did not testify to any facts remotely similar to the
-7-
J-S14029-21
statement she gave police or the sworn statement she reported to secure the
Protection from Abuse Order.” Id. at 15. He asserts that Ms. Blackstone was
not credible at trial because she testified that Appellant strangled her first and
then threw her to the floor and stabbed her, which contradicts her first report
to police that Appellant stabbed her first and then threw her to the floor and
strangled her. Id. He concludes that “the two stories are not even remotely
similar” and, therefore, “[t]he testimony is so contrary to the evidence as to
shock one’s sense of justice.” Id. at 16. No relief is due.
An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court, which will award a new trial only
when the jury's verdict is so contrary to the evidence as to shock one's sense
of justice. Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013). “[T]he
evidence must be so tenuous, vague and uncertain that the verdict shocks the
conscience of the court.” Commonwealth v. Talbert, 129 A.3d 536, 546
(Pa. Super. 2015) (citation omitted).
Questions about inconsistent testimony go to the credibility of the
witnesses, and it is solely for the jury to resolve any conflicts or
inconsistencies. Commonwealth v. Upshur, 764 A.2d 69, 74 (Pa. Super.
2000). The jury is free to believe “all, part, or none of the evidence and to
determine the credibility of the witnesses.” Commonwealth v. Smith, 985
A.2d 886, 897 (Pa. 2009) (citation omitted). The trial judge may not grant
relief based merely on some conflict in testimony or because the judge would
-8-
J-S14029-21
reach a different conclusion on the same facts. Commonwealth v.
Blakeney, 946 A.2d 645, 653 (Pa. 2008).
Appellate review is limited to whether the trial judge's discretion in
denying a new trial was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable abuse of
discretion. Smith, supra at 897. Appellate courts will not consider de novo
the underlying question of the weight of the evidence. Commonwealth v.
Rivera, 983 A.2d 1211, 1225 (Pa. 2009).
The trial court addressed Appellant’s challenge to the weight of the
evidence as follows:
We first address Appellant’s argument that Ms. Blackstone’s
testimony was inconsistent to previous statements and
inconsistent with her injuries. We disagree. Ms. Blackstone’s
assertion that Appellant threw her down, put both of his hands on
her neck, and applied pressure to the point that she could not
breathe, and almost lost consciousness remained consistent and
reliable through her statements to police, both written and oral,
and her testimony. (N.T., 25-26; 60-61). Additionally, the
Commonwealth presented evidence of Ms. Blackstone’s injuries
through the testimony of Corporal Novchich and Ms. Blackstone’s
medical records. Ms. Blackstone’s medical records indicated that
she had strangulation marks on her neck. (N.T., 64). Corporal
Novchich testified that he saw redness on Ms. Blackstone’s neck
immediate upon arrival at the scene (N.T., 75). At the hospital,
Corporal Novchich observed more redness, stress marks, and
scratches show up on Ms. Blackstone’s neck (N.T., 80, 84). These
injuries are consistent with Ms. Blackstone’s testimony regarding
the incident and Appellant’s actions. Thus, we find this argument
lacking.
Tr. Ct. Op. at 10.
-9-
J-S14029-21
Appellant’s challenge based on Ms. Blackstone’s alleged inconsistencies
in relating when Appellant strangled her during the assault fails to convince
us that the trial court abused its discretion in denying Appellant a new trial.
We discern no abuse of discretion in the court’s denying Appellant’s Post-
Sentence Motion. Appellant’s weight challenge, thus, fails to garner relief.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/21/2021
- 10 -