William Andreas Pyliaris v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
WILLIAM ANDREAS PYLIARIS
MEMORANDUM OPINION * BY
v. Record No. 2193-97-2 JUDGE SAM W. COLEMAN III
SEPTEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Christopher J. Collins for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
William Andreas Pyliaris was convicted in a bench trial for
assault in violation of Code § 18.2-51. The sole issue on appeal
is whether the evidence is sufficient to sustain the conviction.
Finding the evidence sufficient to prove that Pyliaris committed
an assault, we affirm the conviction.
To sustain a conviction for assault, the evidence need only
prove "an attempt or offer [by the accused], with force and
violence, to do some bodily hurt to another." Harper v.
Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955).
When the sufficiency of the evidence is challenged on
appeal, we view the evidence in the light most favorable to the
Commonwealth. See Derr v. Commonwealth, 242 Va. 413, 424, 410
S.E.2d 662, 668 (1991). So viewed, the evidence proved that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Terrance Christopher Holmes attended an after-hours bar which
appellant owned. Appellant was working at the club, and Holmes
was intoxicated. Holmes testified that he and appellant had a
brief, amicable verbal exchange. According to Holmes, appellant
attacked him later that evening without warning or provocation.
Holmes testified that appellant repeatedly struck him in the
face, knocking him to the ground. He denied touching or striking
appellant. Holmes suffered a broken jaw and received several
stitches to close one wound.
Richmond Police Officer Lyle B. Harding testified that he
found Holmes bleeding profusely outside the bar. Officer Harding
interviewed appellant about the altercation. Appellant told the
officer that Holmes had been disturbing some female customers,
one of whom was appellant's girlfriend, and a female bartender.
He also told the officer that he did not request the assistance
of the club's bouncers in removing Holmes because "they were
pussies and he had to handle [the situation] himself." Appellant
stated that he started punching Holmes only after Holmes grabbed
him by the neck and in order to extricate himself from Holmes.
The officer testified that he observed marks on appellant's neck
that appeared to be thumbprints.
Valerie Wilnott testified that Holmes was bothering her and
another female patron. She noted that after appellant repeatedly
told Holmes to leave the women alone, appellant pulled Holmes
toward the exit. Wilnott did not see the fight begin. An
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employee of the club testified that Holmes was the initial
aggressor, choking appellant and hitting him with his fists.
Appellant testified that as he was escorting Holmes out of
the bar area, Holmes attacked him and grabbed him by the throat.
Appellant admitted that he struck Holmes, but only to defend
himself from Holmes' attack. After appellant escaped Holmes'
grip, the two of them "exchanged a few more blows."
Appellant's sole contention on appeal is that the evidence
is insufficient to sustain the conviction because his account of
the incident and the account of his witnesses are more believable
than Holmes' version. He further contends that on appeal we do
not disregard the evidence that conflicted with the evidence that
would support the guilty verdict but rather we must consider the
evidence as a whole in determining that the defendant's guilt has
been proven beyond a reasonable doubt and to the exclusion of all
reasonable hypotheses of innocence. We find no merit in these
contentions. The appellant's argument would have us disregard
the role of the fact finder in resolving the conflicts in the
evidence. Holmes' version that appellant attacked him without
provocation and of how the altercation developed, although in
conflict with other evidence, is not inherently incredible. See
Payne v. Commonwealth, 233 Va. 460, 469, 357 S.E.2d 500, 505
(1987). "The weight which should be given to evidence and
whether the testimony of a witness is credible are questions
which the fact finder must decide." Bridgeman v. Commonwealth,
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3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). If there is
evidence in the record to support the conviction, the reviewing
court is not permitted to substitute its own judgment for that of
the fact finder, even if its opinions might differ from the
conclusions reached by the fact finder. See Tyler v.
Commonwealth, 254 Va. 162, 165-66, 487 S.E.2d 221, 223 (1997).
The fact that evidence is in conflict does not of itself create a
reasonable doubt or an hypothesis of innocence.
Here, appellant's claim is that the evidence is insufficient
because it establishes as a matter of law that he assaulted
Holmes in self-defense. However, the trial court accepted
Holmes' testimony that appellant was the aggressor in the
altercation and repeatedly struck Holmes in the face other than
in self-defense. Holmes' testimony was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant assaulted Holmes and did not do
so in self-defense. See Jones v. Commonwealth, 184 Va. 679, 681,
36 S.E.2d 571, 572 (1946). Furthermore, the fact finder could
have found from the evidence that appellant used excessive force
in ejecting Holmes from the premises and more force than was
necessary to defend himself. See Cook v. Commonwealth, 219 Va.
769, 773-74, 250 S.E.2d 361, 364-65 (1979).
Accordingly, we affirm the conviction.
Affirmed.
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