Com. v. . Goloh, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BEN GOLOH :
:
Appellant : No. 1162 EDA 2018
Appeal from the Judgment of Sentence March 2, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005656-2017
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 22, 2019
Appellant Ben Goloh appeals from the judgment of sentence entered
after the trial court found him guilty of simple assault, graded as a third-
degree misdemeanor, and harassment at a non-jury trial.1 Appellant
challenges the sufficiency and weight of the evidence and claims that the trial
court erred in denying his motion for judgment of acquittal. We affirm.
The trial court set forth the facts of this case as follows:
On June 19, 2017[, Appellant] was arrested and charged with [the
following counts:] 1) Strangulation; 2) Simple Assault; 3)
Recklessly Endangering Another Person; 4) [Criminal Mischief;] 5)
Criminal Mischief; and 6) Harassment. The alleged victim of these
charges was Thomas Andrews [(Victim)], [Appellant]’s roommate.
According to the testimony presented at trial by Officer Francis
Devine, [Appellant] and his roommate [Victim] were engaged in
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2701(a)(1), (b)(1), and 2709(a)(1), respectively.
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an altercation in their home at 235 Ashby Road in Upper Darby,
PA, which escalated to the outside premises and neighborhood
block. Upon dispatch to the scene, Officer Devine observed heavy
blood pooling on the sidewalk outside the residence and a trail of
blood leading to a car where [Victim] was found sleeping inside.
Officer Devine discovered [Victim] covered in dried blood, with
marks on his neck and collar bone area, and numerous punctures
and lacerations covering his body. [Victim] gave Officer Devine
his statement[,] which was corroborated by his injuries and the
evidence on the scene. Officer Devine found more blood leading
into the residence, where the front door was open. When entry
was made into the residence, the apartment was found in disarray
with shattered glass on the floor from a broken mirror and blood
covering the walls. [Appellant] was found asleep in his bedroom
and was covered in blood and had lacerations on his hands.
Officer Devine stated that [Appellant] was disoriented, but was
able to recollect the prior night and give a statement. In
[Appellant]’s statement to Officer Devine, he admitted to being
involved in a physical altercation with [Victim]. [Appellant]
admitted the altercation started as a verbal argument inside the
apartment, but became physical when a mirror was broken and
injured both men. [Appellant] told Officer Devine [that] he did
not remember throwing any rocks or damaging any vehicle, which
is what the Officer had originally been called to investigate. After
obtaining his statement, [Appellant] was then transported to the
hospital to be treated for his injuries and was subsequently placed
into police custody.
[Victim] failed to appear for [Appellant]’s preliminary hearing[]
and trial, and over [Appellant]’s objections, both the preliminary
hearing and trial were conducted without the presence of [the
Victim]. [Appellant] waived his right to a jury trial and the case
proceeded as a bench trial. At trial, the Commonwealth’s sole
evidence was the testimony of Officer Devine. Defense counsel
had the opportunity to cross-examine Officer Devine. The
Commonwealth rested and Defense counsel moved for Judgment
of Acquittal on all charges. Th[e trial c]ourt granted the acquittal
as to counts 1, 3, 4, and 5 based on the Commonwealth’s
concession of insufficient evidence but denied as to counts 2 and
6.
The Defense called their sole witness, [Appellant], who was
colloquied prior to testifying. During direct examination,
[Appellant] testified [that] on the night of the incident, [Victim]
had come home intoxicated causing a disturbance in the
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residence. [Appellant] then confronted [Victim,] which incited a
verbal argument, leading to [Victim] allegedly pushing [Appellant]
into the mirror, where he sustained an injury to the first finger on
his left hand. [Appellant] testified [that] after falling into the
mirror, [Victim] left the residence alone and [Appellant] went back
to sleep. Upon waking, [Appellant] was questioned by Officer
Devine and taken to the hospital for his injuries. On cross-
examination, [Appellant] admitted [that] he did not call the police
on his own accord. During closing arguments, the Defense relied
on [Appellant]’s contradictory testimony and the Commonwealth’s
lack of direct evidence to support a not-guilty verdict on either
charge. The Commonwealth relied on Officer Devine’s testimony,
the statement given by [Appellant] to Officer Devine, the physical
evidence at the scene, and the circumstantial evidence supporting
a conclusion of a mutual combat situation.
Trial Ct. Op., 7/5/18, at 1-3. The trial court tried the case without a jury and
convicted Appellant of simple assault and harassment. Id. at 1. That same
day, the trial court sentenced Appellant to concurrent terms of six months’
probation for the simple assault conviction and ninety days’ probation for the
harassment conviction. Id.
On March 12, 2018, Appellant filed post-sentence motions claiming that
the evidence was insufficient, that the verdict was against the weight of the
evidence,2 and that the trial court erred in denying his motion for judgment
of acquittal. See Post-Sentence Mot., 3/12/18, at 2-3 (unpaginated). On
March 15, 2018, the trial court denied Appellant’s post-sentence motion.
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2 In his post-sentence motion, Appellant asserted that the evidence was
insufficient because “there was no evidence that [Appellant] entered into a
fight by mutual consent.” Post-Sentence Mot., 3/12/18, at 2-3 (unpaginated).
According to Appellant, there was no evidence contradicting his own testimony
that he was asleep when Victim came home. Id.
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Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement.3 The trial court filed a responsive Pa.R.A.P. 1925(a) opinion
suggesting all of Appellant’s claims were meritless.
Appellant raises the following issues on appeal, which we have reordered
for ease of disposition:
1. Whether the evidence was insufficient to support a guilty
verdict for simple assault and harassment[.]
2. Whether the weight of the evidence supported a guilty verdict
for simple assault and harassment when the alleged victim of
the simple assault and harassment failed to appear at the
preliminary hearing and at trial when [Appellant] testified that
[the] alleged victim was intoxicated and assaulted him[.]
3. Whether [the] trial court committed reversible error by denying
[Appellant]’s motion for direct acquittal on all charges when the
alleged victim of the simple assault and harassment failed to
appear at the preliminary hearing and at trial in violation of
[Appellant]’s constitutional rights to confront his accuser.
Appellant’s Brief at 4 (some capitalization omitted).
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3 Appellant’s Rule 1925(b) statement read:
1. The Trial Court committed reversible error by denying
[Appellant]’s Motion for Direct Acquittal on all charges when
the alleged victim of the simple assault and, harassment failed
to appear at the preliminary hearing and at trial in violation of
[Appellant]’s constitutional rights to confront his accuser.
2. The weight of the evidence did not support a guilty verdict for
simple assault and harassment.
3. The evidence was insufficient to support a guilty verdict for
simple assault and harassment.
Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal, 5/11/18.
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Sufficiency of the Evidence
Appellant claims that the evidence was insufficient to sustain his
convictions for simple assault and harassment. Appellant notes “that he was
home when [Victim] came home intoxicated and assaulted him[,]” and “that
Appellant suffered significant injuries and required medical attention.” Id. at
12. Appellant specifically argues that because Victim “initiated the physical
contact with Appella[nt], Appellant should not have been found guilty of
simple assault and or harassment.”4 Id.
This Court has set forth our standard of review for challenges to the
sufficiency of the evidence as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
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4As noted above, Appellant’s Rule 1925(b) statement did not did not specify
which elements of his convictions he believed the Commonwealth failed to
prove. It is well settled that a vague challenge to the sufficiency of the
evidence may result in waiver. See Commonwealth v. Roche, 153 A.3d
1063, 1072 (Pa. Super. 2017), appeal denied, 169 A.3d 599 (Pa. 2017). Here,
however, the trial court addressed Appellant’s sufficiency claim in its Rule
1925(a) opinion and the case against Appellant was relatively straightforward.
Therefore, we decline to find waiver. See Commonwealth v. Laboy, 936
A.2d 1058, 1060 (Pa. 2007) (per curiam).
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evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
Section 2701 of the Crimes Code defines simple assault, in relevant part,
as follows: “a person is guilty of assault if he . . . attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another[.]” 18
Pa.C.S. § 2701(a)(1). Simple assault is graded as a misdemeanor of the third
degree if it was committed “in a fight or scuffle entered into by mutual
consent[.]” 18 Pa.C.S. § 2701(b)(1).
Section 2709 defines harassment, in part, as follows: “A person commits
the crime of harassment when, with intent to harass, annoy or alarm another,
the person . . . strikes, shoves, kicks or otherwise subjects the other person
to physical contact, or attempts or threatens to do the same[.]” 18 Pa.C.S. §
2709(a)(1).
Instantly, Appellant admitted that he and Victim engaged in a fight. See
N.T., 3/2/18, at 11-12 (indicating that Appellant admitted to police that he
was in an altercation with Victim and that the mirror “had broken” during the
fight). Although Appellant testified at trial that Victim instigated the fight,
pushed him into the mirror, and that Appellant suffered injuries to his left arm
and hand, the responding officer testified that he observed injuries to Victim’s
shoulder, neck and back and stated that Victim was bleeding profusely. See
id. at 8.
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Therefore, in light of the circumstantial evidence presented at trial, there
was a reasonable basis for the trial court to find that even if Victim instigated
the fight, Appellant pushed Victim into the mirror, and Appellant and Victim
mutually engaged in a physical altercation. Such conduct provided sufficient
basis to conclude that Appellant recklessly caused Victim’s bodily injury and
that Appellant struck and shoved Victim with the intent to harass and alarm
Victim. See 18 Pa.C.S. §§ 2701(a)(1), 2709(a)(1). Accordingly, having
reviewed the record in in a light most favorable to the Commonwealth as the
verdict winner, we agree with the trial court that Appellant’s sufficiency claim
lacks merit. See Palmer, 192 A.3d at 89.
Weight of the Evidence
Appellant repeats the same arguments when challenging the weight of
the evidence. Our standard of review regarding challenges to the weight of
the evidence is well-settled:
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the [fact-finder] is
free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses, and a new trial based on a weight
of the evidence claim is only warranted where the [fact-finder’s]
verdict is so contrary to the evidence that it shocks one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of
discretion.
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Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted).
We have explained that
[a] new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial court
is to determine that notwithstanding all the evidence, certain facts
are so clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A motion
for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence
to sustain the verdict; thus the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner.
Id. (citation omitted). Further, “[b]ecause the trial judge has had the
opportunity to hear and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that the verdict is
against the weight of the evidence.” Id. (citation omitted). “One of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.” Id. (citation
omitted).
Instantly, the trial court found that the verdict was not against the
weight of the evidence and did not shock one’s sense of justice. Trial Ct. Op.,
7/5/18, at 5. It reasoned:
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The [t]rial [c]ourt weighed the evidence presented on both sides
and found the credibility of the Commonwealth to prevail over that
of [Appellant].
. . . According to Officer Devine’s testimony, whom the [t]rial
[c]ourt deemed to be a credible witness , [Appellant] admitted to
engaging in an altercation between [Appellant] and [the Victim].
Additionally, Officer Devine presented circumstantial evidence of
the blood both inside and outside the residence, in addition to the
injuries sustained to both parties, to support a conclusion [that]
this was a mutual combat situation. The Commonwealth may
sustain its burden of proving every element of the crime beyond
a reasonable doubt by means of wholly circumstantial evidence.
Additionally, the trier 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. Ultimately, it was
within th[e trial c]ourt’s discretion to determine the credibility of
both witnesses and whether or not their testimony would satisfy
each element of the alleged crimes to support a conclusion of a
guilty verdict on both counts.
. . . During Officer Devine’s testimony, [Appellant] admitted to the
officer [that] he was involved in an altercation with [V]ictim.
Additionally, [Appellant] testified at trial [that] he confronted
[V]ictim, which according to the testimony of Officer Devine and
the circumstantial evidence given, caused the bodily injury to
[V]ictim.
. . . Both the evidence presented at trial and the injuries sustained
by both [Appellant] and [Victim] support[] the conclusion [that
Appellant] was the one who shoved [Victim] into the mirror.
Ultimately, the [t]rial [c]ourt found the Officer’s testimony
credible, in addition to the injuries sustained by both [Appellant
and Victim] to support the guilty verdict.
Id. at 5-7 (some citations omitted).
Following our review, we discern no abuse of discretion in the trial
court’s ruling. The court found Officer Devine’s testimony to be more credible
than that of Appellant. See id. at 5. Furthermore, the trial court appropriately
concluded that its verdict was not so contrary to the evidence as to require a
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new trial. See Landis, 89 A.3d at 699. Accordingly, Appellant’s challenge to
the weight of the evidence merits no relief.
Judgment of Acquittal
Lastly, Appellant argues that the trial court should have granted his
motion for acquittal because he “was denied his right to confront the alleged
victim . . . at both the preliminary hearing and at the time of trial.” Appellant’s
Brief at 10.
The Commonwealth counters that the Confrontation Clause was not
violated because it applies to “witnesses,” that is, “those who bear testimony.”
Commonwealth’s Brief at 7. The Commonwealth argues that Victim here was
not a witness because he “did not testify and his statement to police was not
introduced into evidence.” Id. at 8.
Regarding our standard of review from a trial court’s denial of a motion
for judgment of acquittal, we have stated, “[a] motion for judgment of
acquittal challenges the sufficiency of the evidence to sustain a conviction on
a particular charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.” Commonwealth v.
Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014) (citation omitted).
A claim that the Confrontation Clause has been violated “presents an
issue of law. [Therefore, o]ur scope of review is plenary and our standard of
review is de novo. Commonwealth v. Williams, 103 A.3d 354, 358 (Pa.
Super. 2014) (citation omitted).
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The Pennsylvania Supreme Court in Commonwealth v. Yohe, 79 A.3d
520 (Pa. 2013), explained the parameters of the Confrontation Clause as
follows:
The Confrontation Clause of the Sixth Amendment, made
applicable to the States via the Fourteenth Amendment, Pointer
v. Texas, 380 U.S. 400, 403, . . . (1965), provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” In Crawford
[v. Washington, 541 U.S. 36, 51 (2004)], the Court held that
the Sixth Amendment guarantees a defendant’s right to confront
those “who ‘bear testimony’” against him, and defined “testimony”
as “[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” The Confrontation Clause, the
High Court explained, prohibits out-of-court testimonial
statements by a witness unless the witness is unavailable and the
defendant had a prior opportunity for cross-examination. Id. at
53–56 . . . .
To further elucidate the distinction between testimonial and non[-
]testimonial statements, the Court in Davis v. Washington, 547
U.S. 813 . . . (2006), addressed two types of statements to police
and held that whether a statement is testimonial depends on its
“primary purpose:”
Statements are non[-]testimonial when made in the course
of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.
Davis, 547 U.S. at 822 . . . .
Yohe, 79 A.3d 520, 530-31 (footnotes omitted).
In its Pa.R.A.P. 1925(a) opinion, the trial court set forth its reasoning as
follows:
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[Appellant] maintains his constitutional right to confront his
accuser was violated because he was not given the ability to
confront the alleged victim, but the victim in this case was not the
accuser; the Commonwealth is. [Appellant] and his counsel were
given several opportunities, both at the preliminary hearing and
at trial, to cross-examine Officer Devine, who was the sole witness
for the Commonwealth, and they did so. For these reasons,
[Appellant]’s constitutional right of Confrontation was not
violated.
Trial Ct. Op., 7/5/18, at 4.
Instantly, the only witness on behalf of the Commonwealth was Officer
Devine. Appellant had the opportunity to cross-examine the officer at trial,
which he did. See N.T. Trial, 3/2/18, at 13-15; see also Yohe, 79 A.3d at
530-31. Victim did not testify at trial and his statements to the police were
not admitted into evidence. See N.T. Trial, 3/2/18, at 9. Moreover, Appellant
cites no case law for his suggestion that Victim was required to be present
and testify at trial. See Appellant’s Brief at 10; see also Pa.R.A.P. 2119.
Lastly, Appellant presented no evidence that he was unable to subpoena
Victim or that Victim was otherwise unavailable to the defense. Therefore,
we agree with the trial court that Appellant’s Confrontation right was not
violated and find no error in the trial court’s denial of the motion for judgment
of acquittal. See Yohe, 79 A.3d 520, 530-31; Williams, 103 A.3d at 358;
Emanuel, 86 A.3d at 894.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/19
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