Com. v. Wright, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRAVIS WRIGHT
Appellant No. 2730 EDA 2016
Appeal from the Judgment of Sentence July 28, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0005096-2015
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 02, 2017
Travis Wright appeals from the judgment of sentence entered in the
Lehigh County Court of Common Pleas on July 28, 2016. After careful
consideration, we affirm.
On August 30, 2015, Allentown Police responded to a report of an
assault at 1046 West Walnut Street, Apartment 2. Upon arrival, the officers
were directed to a back bedroom where the victim, Shykeem Wallace, was
lying on the floor with a swollen and lacerated face. Wallace appeared to be
semi-conscious. Wallace was taken by ambulance to Lehigh Valley Hospital
– Cedar Crest.
Lavetta Shipman, the resident of the apartment, told the police that
her husband, Wright, and his brother, co-defendant Brian Wright, assaulted
Wallace. At trial, Travis Wright testified that he went to the apartment to
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give money to his kids and his stepdaughter let him in. After knocking on
the bedroom door, Shipman told Wright to wait, but never opened the door.
Wright knocked two more times and then entered the room to find Wallace
sitting at the end of the bed, Shipman lying on the bed behind Wallace, and
Wright’s two youngest daughters asleep on the bed.
Wallace did not respond when Wright asked him who he was. Wright
testified that Wallace made a “juke move”1 in his direction, and Wright was
unsure whether Wallace was going to run out of the room or attack him.
N.T. Trial, 06/22/16, at 52, 69. Wright swung at Wallace and the two men
began to fight. After hearing the commotion, Wright’s brother went to the
bedroom, saw the two men fighting, and hit Wallace a few times while
attempting to break up the fight.
At this point, Wright put Wallace in a chokehold and hit him repeatedly
in the head and upper body. When Wright noticed his children waking up,
he stopped and left the apartment with his brother. The altercation left
Wallace with a concussion, a laceration to his left cheek that needed
stitches, a fractured nasal bone, fractured eye sockets that required surgery,
and hemorrhaging in both eye sockets. Wallace testified at trial that he
could not see as far as he could before the incident.
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1
“[T]o fake out of position (as in football)[.]” MERRIAM-WEBSTER (last visited
July 12, 2017), https://www.merriam-webster.com/dictionary/juke.
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On June 22, 2016, a jury found Wright guilty of aggravated assault 2
and simple assault,3 and the Honorable James T. Anthony found Wright
guilty of the summary offense of harassment.4 Judge Anthony denied
Wright’s motion for a new trial and, on July 28, 2016, he sentenced Wright
to four to eight years’ imprisonment. On August 22, 2016, Wright filed a
timely appeal.
Wright alleges that the jury’s verdict of guilty, with respect to the
aggravated assault charge, was against the weight of evidence presented at
trial. Specifically, Wright claims that (1) the Commonwealth failed to
disprove his self-defense claim, (2) the Commonwealth failed to prove he
attempted to cause serious bodily injury, and (3) the evidence showed the
fight resulted from mutual agreement of the parties. Trial Court Opinion,
10/21/16, at 3.
Conclusions as to what weight to afford the evidence are solely for the
finder of fact, who is “free to believe all, part, or none of the evidence, and
to assess the credibility of the witnesses.” Commonwealth v. DeJesus,
860 A.2d 102, 107 (Pa. 2004). We cannot substitute our judgment for that
of the finder of fact. See Commonwealth v. Champney, 832 A.2d 403,
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2
18 Pa.C.S.A. § 2702(a)(1).
3
18 Pa.C.S.A. § 2701(a)(1).
4
18 Pa.C.S.A. § 2709(a)(1).
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408 (Pa. 2003). A trial court will reverse a jury's verdict and grant a new
trial only where the verdict is so contrary to the evidence as to shock one's
sense of justice. See Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa.
2008). Our appellate courts have repeatedly emphasized that “[o]ne 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.” Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super.
2005) (internal quotes omitted). An appellate court’s purpose in reviewing a
challenge to the weight of evidence “is to determine whether the trial court
abused its discretion and not to substitute [its own] judgment for that of the
trial court. Commonwealth v. Murray, 597 A.2d 111, 114 (Pa. Super.
1991) (en banc) (citations omitted).
Additionally, a claim that the verdict is contrary to the weight of
evidence is distinct from a claim pertaining to the sufficiency of the
evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). A
sufficiency of the evidence claim maintains that the evidence was inadequate
to prove each element of the crime charged beyond a reasonable doubt. Id.
A claim that the verdict is against the weight of the evidence acknowledges
that there was sufficient evidence to sustain the verdict, but questions the
evidence to be believed. Commonwealth v. Lewis, 911 A.2d 558, 566
(Pa. Super. 2006) (quoting Commonwealth v. Hunzer, 868 A.2d 498, 507
(Pa. Super. 2005)).
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Wright asserts that he fought Wallace in self-defense because Wallace
made a move toward him, which put him in fear of an attack. There was
conflicting testimony, however, because the Commonwealth presented
evidence that Wright was the aggressor and could not have reasonably
believed he was in danger of death or serious bodily injury. The jury, as fact
finder, was free to believe all, part, or none of the evidence and assess the
credibility of the witnesses. DeJesus, supra. Although Wright alleges that
the Commonwealth failed to disprove his self-defense claim, it is clear that
the jury trusted the Commonwealth’s description of events over Wright’s
version. The mere fact that the jury chose not to believe Wright does not
render the verdict against the weight of evidence.
Wright also claims the Commonwealth failed to prove he attempted to
cause Wallace serious bodily injury. This is a sufficiency challenge, rather
than a weight claim, because Wright alleges the Commonwealth failed to
prove all of the elements of aggravated assault.5 When evaluating a
sufficiency of the evidence challenge,
we must determine whether, viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, together
with all reasonable inferences therefrom, the trier of fact could
have found that each and every element of the crimes charged
was established beyond a reasonable doubt.
Commonwealth v. Little, 879 A.2d 293, 296-297 (Pa. Super. 2005).
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5
In raising a weight of the evidence claim, Wright has conceded that the
evidence is sufficient to sustain the verdict. See Lewis, 911 A.2d at 566.
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An individual is guilty of aggravated assault, where he:
[A]ttempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly, or recklessly under
circumstances manifesting an extreme indifference to the value
of human life.
18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is bodily injury that
“creates a substantial risk of death or which causes serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301. Where the injury to the victim
does not constitute serious bodily injury, the charge of aggravated assault
can still be sustained if the evidence suggests the defendant intended to
cause serious bodily injury. See Commonwealth v. Dailey, 828 A.2d 356,
359 (Pa. Super. 2003); see also Commonwealth v. Alexander, 383 A.2d
887, 889 (Pa. 1978) (emphasis added).
Wright claims the circumstances surrounding the incident do not
support a finding that he intended to cause Wallace serious bodily injury.
The Commonwealth, however, presented evidence that Wright repeatedly
punched Wallace in the face and upper body while he had him in a
chokehold. Wright was not provoked, and only stopped because his children
woke up. Additionally, the evidence established that Wallace suffered
fracturing and hemorrhaging in both eye sockets, and Wallace testified that
his vision was impaired after the assault. Thus, the evidence was sufficient
to prove Wright attempted to inflict serious bodily injury on Wallace.
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Finally, Wright argues the evidence establishes that he and Wallace
entered into a “mutual combat fight.” Appellant’s Brief, at 12. We note
that, the verdict slip shows that the jury did find the fight was entered into
by mutual agreement of the parties. However, evidence of mutual combat is
only relevant to simple assault, not aggravated assault, and is merely a
grading consideration. Commonwealth v. Norley, 55 A.3d 526, 530 (Pa.
Super. 2012); see also 18 Pa.C.S.A. § 2701(b). As such, this claim is
meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2017
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