Com. v. Vangoethem, J.

J-S44032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH M. VANGOETHEM
Appellant No. 208 WDA 2014
Appeal from the Judgment of Sentence October 11, 2013
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004160-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 29, 2014
Joseph M. Vangoethem appeals from the judgment of sentence
entered October 11, 2013, in the Westmoreland County Court of Common
Pleas. Vangoethem was sentenced to an aggregate term of four to eight
guilty of aggravated assault and escape.1 On appeal, Vangoethem
challenges the sufficiency and weight of the evidence supporting his
conviction of aggravated assault, as well as the ineffectiveness of trial
counsel. For the reasons set forth below, we affirm.
as follows:
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1
18 Pa.C.S. §§ 2702(a)(1) and 5121(a), respectively.
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The instant case arises from an assault which occurred at
rner Tavern in Delmont, Pennsylvania. At
approximately 4:40 p.m., the victim, James Weinstein, was
attacked by Mr. Vangoethem. A video was presented at trial
which captured the assault itself. [Vangoethem] followed the
victim around a pool table and punched the victim in the head.
He then pushed the victim onto a table, then onto the ground.
While on the ground, [Vangoethem] struck the victim with a
chair. Mr. Vangoethem proceeded to kick the victim in the head
three times. At no point was the victim ever depicted as being
the first aggressor. At the time of the assault, the victim was 52
years old and [Vangoethem] was 31 years old.
Trial Court Opinion, 1/3/2014, at unnumbered pp. 1-2.2 Vangoethem was
handcuffed, and placed in the back of a patrol car while the police
investigated the incident. However, sometime later he fled the scene, and
was captured about a quarter of a mile away.
Vangoethem was subsequently charged with aggravated assault and
escape. His case proceeded to a non-jury trial on July 16, 2013, at the
conclusion of which the trial court returned a verdict of guilty on both
charges. Vangoethem was sentenced on October 11, 2013, to a term of four
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2
At trial, Vangoethem testified that the victim was upset he lost a bet to
Vangoethem, and threatened to hit Vangoethem with a pool stick. N.T.,
7/16/2013, at 177. He also stated that he was fearful the victim had a gun
because the victim told him sever
Id. at 179. Vangoethem admitted that he punched and kicked the
victim, but stated that he did so because he was trying to leave the tavern.
Id.
Id. He also acknowledged that
keep him down so that [Vangoethem] could leave without him following
Id. at 182.
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of o
and was granted an extension of time to file post-sentence motions. On
November 11, 2013, Vangoethem filed timely post-sentence motions
challenging the weight and sufficiency of the evidence of supporting his
conviction of aggravated assault, as well as the ineffectiveness of trial
counsel. After conducting an evidentiary hearing, the trial court, on January
-trial motions. This
timely appeal followed.3
Vangoethem raises the following four issues on appeal:
1. Whether the evidence was sufficient to support his conviction of
aggravated assault?
2. Whether the trial court abused its discretion in denying his post-
sentence motion challenging the weight of the evidence supporting his
conviction of aggravated assault?
3. Whether trial counsel was ineffective for failing to call Tonya
Pefetta as an exculpatory witness at trial?
4. Whether trial counsel was ineffective for failing to introduce the
videot
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3
The trial court did not direct Vangoethem to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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See -8.
The first issue Vangoethem raises on appeal challenges the sufficiency
of the evidence supporting his conviction of aggravated assault. Specifically,
Vangoethem -defense in
the specific intent to cause ser
-13.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth's
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010) (internal
citations omitted), appeal denied, 14 A.3d 826 (Pa. 2011).
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To secure a conviction of aggravated assault, the Commonwealth must
serious bodily injury to another, or cause[ed] such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
as here, the victim did not suffer serious bodily injury,4
inquiry, therefore, becomes whether [the defendant] acted with specific
intent Commonwealth v. Dailey, 828
A.2d 356, 359 (Pa. Super. 2003) (emphasis supplied).
the accused intended to cause serious bodily injury need not itself be life
Commonwealth v. Rodriquez, 673 A.2d 962, 966 (1996)
(citations omitted), appeal denied, 692 A.2d 565 (Pa. 1997). See also
Commonwealth v. Fortune
intent ordinarily must be proven through circumstantial evidence and
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4
The Crimes Code define
Bodily injury which 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. § 2301. The Commonwealth concedes that the victim did not
suffer serious bodily injury as defined above. See
15.
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on omitted),
appeal denied, 78 A.3d 1089 (Pa. 2013).
Here, the trial court found that the evidence was sufficient to prove
Vangoethem had the specific intent to cause serious bodily injury to the
victim. The court opined:
[Vangoethem] was twenty years younger than the victim.[5]
Further, he needed to be restrained by the bartender; however,
he proceeded to kick the victim in the head as he lay on the
ground. Then, he picked up a chair and struck the victim as he
lay defenseless on the ground.
Trial Court Opinion, 1/3/2014, at unnumbered p. 2.
claimed he was fearful of the victim, he acknowledged that he punched the
victim as the victim was walking away from him, and then he kicked the
victim several times while the victim was lying hurt on the floor. See N.T.,
7/16/2013, at 180-181, 194. When asked by the prosecutor if he intended
to hurt the victim when he punched him twice from behind, Vangoethem
Id. at 194.
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5
at the time of the assault. N.T., 7/16/2013, at 181. He also testified that
the victim was about an inch taller than him, and outweighed him. Id. The
trial court was well aware of any disparity in size or build of the defendant
and victim at the time of the incident since surveillance video of the assault
was played at trial. Id. at 81-83.
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The trial court, sitting as fact finder, had the opportunity to view the
surveillance video of the assault, and acted within its discretion when it
Accordingly, we agree with the conclusion of the trial court that the evidence
assault.6 See Dailey, supra, 828 A.2d at 360-361 (finding evidence
sufficient to sustain conviction for attempting to cause serious bodily injury
-
Next, Vangoethem argues that his conviction was against the weight of
the evidence.7
established that [his] actions constituted justifiable self-defense and were
taken in response to the use of unlawful force against him by the alleged
Appellate review of a weight of the evidence claim is well-established:
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6
We note that although Vangoethem appears to argue that he acted in self-
defense, he fails to develop that claim in his brief. Accordingly, that claim is
waived for our review. See Commonwealth v. Knox, 50 A.3d 732, 748
(Pa. Super. 2012), appeal denied When an
appellant fails to develop his issue in an argument and fails to cite any legal
7
Vangoethem properly preserved his challenge to the weight of the evidence
by raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).
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A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in
justice. Commonwealth v. Widmer, 560 Pa. 308, 318 20, 744
A.2d 745, 751 52 (2000); Commonwealth v. Champney, 574
Pa. 435, 443 44, 832 A.2d 403, 408 09 (2003). On review, an
appellate court does not substitute its judgment for the finder of
fact and consider the underlying question of whether the verdict
is against the weight of the evidence, but, rather, determines
only whether the trial court abused its discretion in making its
determination. Widmer, 560 Pa. at 321 22, 744 A.2d at 753;
Champney, 574 Pa. at 444, 832 A.2d at 408.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S.Ct. 1792 (2014).
a rehash of his
sufficiency challenge. He fails to explain how the verdict was against the
weight of the evidence, or in what way the trial court abused its discretion in
denying his weight claim. Rather, his argument consists only of his bald
allegatio -
Opinion, 1/3/2014, at unnumbered p. 3. Vangoethem provides us with no
basis upon which to disagree. Accordingly, his weight claim fails.
In his final two issues, Vangoethem challenges the ineffective
assistance of trial counsel. For the reasons that follow, we dismiss these
claims without prejudice to Vangoethem to raise them in a collateral
proceeding.
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Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the
Pennsylvania Supreme Court reaffirmed the general rule first set forth in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), t
ineffective assistance of counsel are to be deferred to PCRA review; trial
courts should not entertain claims of ineffectiveness upon post-verdict
Holmes, supra at 576. The Holmes Court recognized, however, that there
may be circumstances in which direct review of ineffectiveness claims should
be permitted. The Court limited those circumstances to the following: (1)
where the trial court determines that a claim of ineffe
meritorious and apparent from the record so that immediate consideration
8
waiver of
his entitlement to seek PCRA review from his conviction and sentence,
including an express recognition that the waiver subjects further collateral
9
Neither of the exceptions applies in the present case. First,
record. In fact, the trial court, following an evidentiary hearing, determined
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8
Holmes, supra, 79 A.3d at 577.
9
Id. at 562 (emphasis supplied).
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that the claims were not worthy of relief. Second, the trial court made no
finding that Vangoethem demonstrated good cause for direct appeal review
of his ineffectiveness claims, and, most importantly, Vangoethem did not
expressly waive his right to a first PCRA petition. See id.
should agree to such [unitary] review only upon good cause shown and
prejudice to him to raise these ineffectiveness claims in a timely PCRA
proceeding.10
Accordingly, because we conclude that Vangoethem is entitled to no
relief on any of the claims raised in this appeal, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
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10
We recognize that Vangoethem was appointed new counsel for appeal,
and the tri
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), cert. denied, 540
U.S. 1115 (2004), we would be permitted to resolve the ineffectiveness
claims on direct appeal. However, the Holmes decision, which was filed
prior to the post-sentence motions in the present case, makes clear that an
expansive Bomar exception to PCRA review of ineffectiveness claims is no
longer viable. See Commonwealth v. Arrington, 86 A.3d 831, 856 (Pa.
2014) (noting that the Holmes Bomar exception to its
pre-Grant
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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