J-S67017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2701(a)(1), (b)(1), and 2709(a)(1), respectively.
J-S67017-18


     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

                                    -2-
J-S67017-18


       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.

____________________________________________


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.



                                           -3-
J-S67017-18



        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).
____________________________________________



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.



                                           -4-
J-S67017-18



                            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
____________________________________________


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).

                                           -5-
J-S67017-18


      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.

                                     -6-
J-S67017-18



      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.




                                      -7-
J-S67017-18



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:




                                      -8-
J-S67017-18


      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


                                       -9-
J-S67017-18



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).




                                      - 10 -
J-S67017-18



      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:

                                       - 11 -
J-S67017-18


      [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.




                                     - 12 -
J-S67017-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




                          - 13 -
