Com. v. Cobbs, J.

J-A23006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY COBBS, JR., :
:
Appellant : No. 936 WDA 2014
Appeal from the Judgment of Sentence entered on May 2, 2014
in the Court of Common Pleas of Allegheny County,
Criminal Division, No. CP-02-CR-0001691-2013
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED September 1, 2015
Jeffrey Cobbs, Jr. (“Cobbs”), appeals from the judgment of sentence
imposed following his convictions of simple assault, terroristic threats, and
the summary offense of criminal mischief.1 We affirm.
The trial court set forth the relevant facts underlying this appeal as
follows:
On October 30, 2012, Sarah Cobbs (“Ms. Cobbs”) was at
her residence making Halloween decorations for her daughter’s
elementary school class. Although she and [Cobbs], her
husband, both owned the residence, she was estranged from
[Cobbs] and she resided there with her three children. [Cobbs]
resided elsewhere. She was eight months pregnant and [Cobbs]
was the father of the child. Their three young children were
sleeping in the residence. She had called [Cobbs] a couple times
earlier in the day to ask him if he could watch their children due
to the fact that their nanny was ill. When she and [Cobbs]
finally spoke on the phone, the conversation became heated.
Both Ms. Cobbs and [Cobbs] began attacking each other over
their romantic relationships with other people. The conversation
1
See 18 Pa.C.S.A. §§ 2701(a), 2706(a)(1), 3304(a)(2).
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became extremely heated when Ms. Cobbs told [Cobbs] that she
was sleeping with another person. [Cobbs] abruptly hung up the
telephone. Shortly thereafter, [Cobbs] appeared at the
residence and he was very angry and agitated. He began
accusing her of having sexual relations with someone else and
he placed his hands around Ms. Cobb[s]’s neck and began
choking her while she was sitting on the couch. She was unable
to breathe. He began to push her down into the arm of the
couch. Ms. Cobb[s] was unable to breathe and she “started to
see black spots everywhere.” Ms. Cobbs believed she was going
to die. [Cobbs] stopped choking her and walked across the
room. He continued ranting about her sexual relations with
another person. [Cobbs] became more and more angry and
picked up pumpkins[,] which were in the house as decorations[,]
and he began throwing the pumpkins around the house.
[Cobbs] then came back at Ms. Cobbs and started choking her
again. He demanded that she produce her cell phone. After
about ten to fifteen seconds, [Cobbs] backed off. He continued
berating Ms. Cobbs, calling her “a dirty whore.” He then walked
over to the couch where she was sitting and he flipped the couch
over. Ms. Cobbs struck her head on the wall. Her abdominal
area also struck the wall. [Cobbs] then called Ms. Cobbs[’s]
mother and told her to come get Ms. Cobbs. He repeatedly
stated that Ms. Cobbs would “be leaving in a body bag” if Ms.
Cobbs’[s] mother didn’t come pick her up. Ms. Cobbs was
wedged between the couch and the wall and she heard her
children begin to cry. She believed she was going to die. After
[Cobbs] ended the phone conversation with Ms. Cobbs’[s]
mother, he grabbed Ms. Cobbs by her hair and began pulling her
from behind the couch. While he was pulling her, he repeatedly
punched her in the head. [Cobbs] began demanding that Ms.
Cobbs identify the person with whom she was having romantic
relations. Ms. Cobbs refused to identify the individual. [Cobbs]
then ordered Ms. Cobbs to leave the residence. Ms. Cobbs
indicated that she would leave but she wanted to take the
children with her. [Cobbs] would not permit the children to
leave. Ms. Cobbs began putting her shoes on to leave[, after
which Cobbs] changed course and would not let her leave. He
pushed her down into a chair.
At this point, there was a knock on the door. [Cobbs’s]
son and his girlfriend, Allison Didaro, arrived at the residence.
They had been called by Ms. Cobb[s]’s mother. Arrangements
were made for Allison Didaro to take care of the children.
[Cobbs’s] son attempted to calm [Cobbs]. [Cobbs] then started
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to walk out of the house. Ms. Cobbs followed [Cobbs,] and he
told her that he would break every window of her automobile
unless she identified her paramour. While outside, [Cobbs]
picked up a large piece of cement and used it to repeatedly
strike the windshield of Ms. Cobb[s]’s automobile until it
cracked. He then threw the piece of cement through the
windshield. [Cobbs] then came back into the house and told Ms.
Cobbs that she can’t keep playing games with him. [Cobbs]
specifically stated “This is our life and I could have killed you.”
He indicated that he would “spend the rest of his life making this
up to you.” [Cobbs] then said goodbye to his children and left
the residence. After [Cobbs] had been gone about ten minutes,
Ms. Cobb[s]’s mother arrived at the residence. Ms. Cobbs went
to the hospital with Allison Didaro and [Cobbs’s] son. She was
treated and released.
At trial, Marcie Riecks [“Riecks”], one of [Cobbs’s] former
lovers, testified that [Cobbs] called her on the evening of
October 30, 2012. She and [Cobbs] had been involved in a
relationship until 2002[,] but they had resolved their differences
in 2012[,] and began speaking again. During the telephone call
on the night of the incident in question …, [Cobbs] was very
distraught and told [] Riecks that he had choked Ms. Cobbs and
that “her eyes were bugging out of her head.” He also told []
Riecks that he thought he had killed Ms. Cobbs.
[Cobbs] testified in his own defense. He denied assaulting
Ms. Cobbs. He described the entire incident[,] and his
description involved an angry argument but no physical contact.
[Cobbs’s] son testified that he did not observe an assault nor did
he observe any damage to Ms. Cobb[s]’s vehicle. He testified
that when he arrived at the residence, [Cobbs] was angry. His
son testified that [Cobbs] calmed down and left the residence.
[Cobbs] also presented character witnesses.
Trial Court Opinion, 1/14/15, at 2-4.
A few months after the assault, the Commonwealth charged Cobbs
with aggravated assault, false imprisonment, terroristic threats and criminal
mischief. The matter proceeded to a non-jury trial, at the close of which the
trial court acquitted Cobbs of aggravated assault and false imprisonment,
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but found him guilty of simple assault, terroristic threats and criminal
mischief. Immediately after trial, the trial court sentenced Cobbs to serve
five years of probation for his conviction of terroristic threats, and imposed
no further sentence as to the remaining convictions. Cobbs timely filed a
post-sentence Motion, challenging the weight of the evidence and the trial
court’s ruling concerning a Commonwealth objection at trial. The trial court
denied the post-sentence Motion, after which Cobbs filed a timely Notice of
Appeal.
Cobbs presents the following issues for our review:
1. Whether the verdicts of guilty as to simple assault and
terroristic threats were against the weight of the evidence
where the Commonwealth’s key witnesses blatantly
contradicted each other[,] and the trial court found that
[Ms. Cobbs] was not credible on her claim that [Cobbs]
choked her with considerable force?
2. Whether the trial court erred in sustaining the
Commonwealth’s objection to non-leading questions, as
leading, where said questions were directed to [Cobbs] to
permit him to address the Commonwealth’s key allegations
against him?
Brief for Appellant at 4.
Cobbs first argues that his convictions of simple assault and terroristic
threats were against the weight of the evidence and must be overturned.
Id. at 17-19.
Our standard in reviewing a weight of the evidence claim is as follows:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
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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. 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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and
citations omitted).
Relief on a weight of the evidence claim is reserved for
extraordinary circumstances, when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail. On appeal, [an appellate] Court
cannot substitute its judgment for that of the [fact-finder] on
issues of credibility, or that of the trial judge respecting weight.
Our review is limited to determining whether the trial court
abused its discretion[.]
Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and
quotation marks omitted).
According to Cobbs, “[t]o find [Ms.] Cobbs’[s] testimony credible,
where she had not one single objectively[-]determined injury, shocks the
conscience.” Brief for Appellant at 19; see also id. at 18 (alleging that
there was no indication of any injury to Ms. Cobbs in either her hospital
records or the photographs taken of her after the assault, which were
presented at trial). Additionally, Cobbs avers that the trial court disbelieved
the portion of Ms. Cobbs’s version of the assault whereby she testified that
Cobbs choked her nearly to the point of unconsciousness. Id. at 19; see
also N.T., 5/2/14, at 74 (wherein the trial court stated that “[t]he hospital
records do not support, from a clinical evaluation standpoint, the testimony
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of [Ms. Cobbs] being choked to the point of unconsciousness. And the way
[Ms. Cobbs] described that, the [c]ourt finds it very hard to believe there
would be no marks on her neck.”). Cobbs asserts that “[f]or the trial court
to find that [Ms.] Cobbs was not credible with respect to her testimony about
the force with which she was allegedly choked, but find [that] Riecks was
credible in testifying that [Cobbs] cho[]ked [Ms.] Cobbs with such force,
shocks the conscience.” Brief for Appellant at 19.2
The trial court addressed Cobbs’s challenge to the weight of the
evidence as follows:
[Cobbs’s] weight claims essentially challenge this [c]ourt’s
assessment of [the] credibility of Ms. Cobbs and [] Riecks.
[Cobbs’s] argument is that this [c]ourt should not have rendered
a guilty verdict of simple assault because of comments it made
about Ms. Cobbs[’s] testimony[,] and because [] Riecks was
[allegedly] not credible. This [c]ourt clearly believed [that
Cobbs] choked and struck Ms. Cobbs[,] and thus found [him]
guilty of simple assault. Relying on the medical records, this
[c]ourt did not believe, however, that the choking described by
Ms. Cobbs rose to the level of aggravated assault. This [c]ourt,
likewise, determined that the testimony of [] Riecks was
credible. Inasmuch as [Cobbs’s] weight claim concedes that the
evidence was sufficient to convict [him] of simple assault[,] and
[] a weight of the evidence claim cannot be based on a challenge
to the [c]ourt’s credibility determinations, [Cobbs’s] weight claim
fails. This [c]ourt did not credit [Cobbs’s] version of events and
… was well within its province to make that assessment. The
2
Though Cobbs’s Statement of Questions Presented purports to challenge
his conviction of terroristic threats in connection with his weight claim, he
fails to raise any claims in his Argument section which could pertain to that
conviction. See Pa.R.A.P. 2119(a). Additionally, Cobbs did not address, in
his Pa.R.A.P. 1925(b) Concise Statement, how his conviction of terroristic
threats was against the weight of the evidence. Based upon this defect, the
trial court concluded that Cobbs waived his claim. Trial Court Opinion,
1/14/15, at 8 n.1 (citing Commonwealth v. Williams, 959 A.2d 1252,
1257-58 (Pa. Super. 2008)). We agree with the trial court’s conclusion.
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trial evidence presented by the Commonwealth … was credible,
competent and reliable[,] and established every element of
simple assault. This [c]ourt has reviewed the trial record and
believes that the verdict does not shock any rational sense of
justice and, therefore, the verdict was not against the weight of
the evidence.
Trial Court Opinion, 1/14/15, at 6-7.
We agree with the trial court’s foregoing analysis and conclusion,
mindful that we may not disturb the court’s credibility determinations or
substitute our judgment for that of the fact-finder. See Sanchez, supra.
Moreover, contrary to Cobbs’s claim, the trial court’s finding that a portion of
Ms. Cobbs’s account of the assault was not credible in no way undermines
the court’s other credibility determinations or the adequacy of the evidence
supporting Cobbs’s convictions. See Commonwealth v. Schmohl, 975
A.2d 1144, 1147 (Pa. Super. 2009) (stating that “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.”) (citation
omitted). Cobbs essentially asks us to reweigh the evidence, which our
standard of review prohibits. See id.; see also Commonwealth v.
Santiago, 980 A.2d 659, 664 (Pa. Super. 2009) (holding that the trial court
properly exercised its discretion in denying a weight challenge where
appellant asked this Court to reweigh the evidence). Furthermore, to the
extent that there were purported conflicts in the testimony of Ms. Cobbs and
Riecks, the trial court assessed the weight, if any, to be given this evidence.
See Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011)
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(stating that it is exclusively the province of the fact-finder to determine the
weight to be accorded conflicting evidence). Accordingly, we discern no
abuse by the trial court in rejecting Cobbs’s challenge to the weight of the
evidence.
Next, Cobbs argues that the trial court committed reversible error in
its evidentiary rulings during defense counsel’s direct examination of Cobbs,
ruling that counsel’s questions were leading.3 See Brief for Appellant at 20-
24. According to Cobbs, the trial court’s sustaining of the prosecution’s
objections to defense counsel’s line of questioning violated Cobbs’s
constitutional rights to be heard and adequately respond to the charges
against him. Id. at 23.
“The trial judge has wide discretion in controlling the use of leading
questions. The court’s tolerance or intolerance for leading questions will not
be reversed on appeal absent an abuse of discretion.” Commonwealth v.
Fransen, 42 A.3d 1100, 1116 (Pa. Super. 2012) (en banc) (citation
omitted). The Pennsylvania Rules of Evidence provide that “[l]eading
questions should not be used on direct or redirect examination except as
necessary to develop the witness’s testimony.” Pa.R.E. 611(c); see also
Chambers, 599 A.2d at 640 (stating that “[t]he rule that a party calling a
witness is not permitted to ask leading questions … is [to be] liberally
construed in modern practice.”) (citation omitted).
3
“A leading question is one which puts the desired answer in the mouth of
the witness.” Commonwealth v. Chambers, 599 A.2d 630, 640 (Pa.
1991).
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Cobbs challenges the trial court’s sustaining of the Commonwealth’s
objections during the following exchange:
Q. [Defense counsel]: And when you got there[, i.e., Ms.
Cobbs’s home,] what happened?
A. [Cobbs]: I proceeded to yell, scream. I was completely
agitated at the fact that she [Ms. Cobbs] would do this while
pregnant. It was just repulsive to me.
Q. All right. Did she scream back?
A. No she didn’t. She sat there. She cried.
Q. At any point in time did you hit her or strike her?
A. No.
Q. At any point in time did you flip her on the couch?
A. No.
Q. Did you ever have physical contact with her at that time?
[The prosecutor]: Your Honor –
A. No.
[The prosecutor]: This is all leading questions.
THE COURT: Is that an objection?
[The prosecutor]: Objection. Leading.
THE COURT: I know I am a stickler for doing things according to
procedure, but particularly after certain events have occurred
yesterday and this morning in another matter, I’m going to be
worse, not better, for being a stickler for doing it by the book.
Objection sustained.
[Defense counsel]: Okay.
Q. [Defense counsel]: Did you assault her?
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A. [Cobbs]: I did not.
[Defense counsel]: I don’t see how that’s leading.
THE COURT: He [the prosecutor] just stood up. Maybe he’s
tired of sitting. He didn’t say anything. Mr. Petulla, [i.e., the
prosecutor,] do you wish to be heard?
[The prosecutor]: Your Honor, that – objection. Leading. What
happened –
THE COURT: Technically, he’s right. Sustained. “Did you
assault her” is leading a little bit, just a little bit.
[Defense counsel]: It doesn’t suggest an answer. He could say
yes, or he could say no.
THE COURT: Well, it doesn’t suggest an answer, but it suggests
the issue of assault as opposed to what happened between
them.
N.T., 5/2/14, at 10-12.
Cobbs argues as follows concerning the trial court’s above rulings:
The questions put to [Cobbs], which were objected to as leading,
were not leading. … [Cobbs] understands that one might view
this issue as one vested in the sound discretion of the trial court.
[Cobbs] submits that the trial court had no discretion to be
legally incorrect. Secondly, the second objection by the
Commonwealth was that the question was leading. The trial
court agreed that such was not leading[,] but sustained the
objection. This was an abuse of discretion.
Brief for Appellant at 24.
Upon review of the record, we discern no reversible error in the trial
court’s rulings. The rulings also did not prevent Cobbs from adequately
responding to the charges against him. It bears repeating that Cobbs was
tried in a non-jury trial. See Commonwealth v. Moss, 852 A.2d 374, 381
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(Pa. Super. 2004) (stating that when a trial court conducts bench trial, a
presumption exists that the court disregarded any inadmissible evidence).
However, even assuming, arguendo, that the trial court made an
improper ruling concerning one or both of the Commonwealth’s objections,
such error would be harmless and not entitle Cobbs to relief. “The harmless
error doctrine, as adopted in Pennsylvania, reflects the reality that the
accused is entitled to a fair trial, not a perfect trial. … Harmless error
exists[, in relevant part,] if the record demonstrates [that] … the error did
not prejudice the defendant or the prejudice was de minimis ….”
Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citations and
quotation marks omitted). Here, Cobbs was not prejudiced by the trial
court’s sustaining the objections, as the court, sitting as the fact-finder,
considered Cobbs’s testimony and fully understood that he denied all of the
allegations against him. See Trial Court Opinion, 1/14/15, at 8 (stating that
“[t]his [c]ourt understood [Cobbs’s] denial that he hit or choked [Ms. Cobbs]
and that he flipped the couch. This [c]ourt did not, however, give the
denials any credence.”).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2015
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