J-S36042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL C. JACKSON,

                            Appellant                No. 1649 MDA 2015


             Appeal from the Judgment of Sentence May 12, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0004391-2014

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MAY 09, 2016

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Dauphin County following Appellant’s conviction by a

jury on the charge of simple assault, 18 Pa.C.S.A. § 2701(a)(1). Appellant

contends (1) the evidence is insufficient to sustain his conviction, (2) the

jury’s verdict is against the weight of the evidence, and (3) the trial court

erred in precluding admission of evidence regarding the prior bad acts of the

victim.1   We affirm.

        Appellant was arrested, and represented by counsel, he proceeded to a

jury trial. The trial court has exhaustively set forth the facts as derived from

the testimony and evidence presented at trial as follows:
____________________________________________


1
    We have renumbered Appellant’s issues.



*Former Justice specially assigned to the Superior Court.
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            On the evening of February 19, 2014, Mr. Kenneth Towles
     (“Mr. Towles”) and his ex-paramour[,] Ms. Joanne Brown (“Ms.
     Brown”), and her daughter[,] Ms. Bonita Brown (“Bonita”)
     departed from McClay Street apartments at or around 6:00
     [p.m.] and proceeded to the local neighborhood establishment
     known as Lucky 7 (“the Bar”). [N.T.] Trial, 3/3/15, at 18.
     [Appellant] was present at the Bar and witnessed Mr. Towles,
     Ms. Brown, and Bonita consuming alcoholic beverages and
     socializing throughout the evening. [Id. at 58-59]. He himself
     was also consuming alcohol. [Id. at 59]. At or around 8:00
     [p.m.], Mr. Towles, Ms. Brown, and Bonita departed from the
     Bar. [Id. at 22, 59]. Upon exiting, Mr. Towles was holding on
     to the back of Ms. Brown’s coat because he was concerned for
     her safety on the slippery walkway. [Id. at 19, 59]. [Appellant]
     did not leave the Bar at this time. [Id. at 59]. Once outside,
     Mr. Towles’ actions were misinterpreted by Ms. Brown who
     complained about having the back of her coat held. [Id. at 19-
     21]. Subsequently, a dispute arose between Mr. Towles and
     Bonita in which Bonita fell and may have had her hair pulled out.
     [Id.]. At this point, Mr. Towles left both Ms. Brown and Bonita
     in the parking lot and proceeded back to his residence at McClay
     Street apartments alone where he dosed of in [a] chair while
     watching television. [Id. at 21-22].

           Bonita then proceeded back to the Bar where she sat and
     conversed with [Appellant] about the altercation. [Id. at 60].
     At this time, Ms. Brown’s whereabouts were unknown. [Id. at
     22-24]. Later that evening[,] Bonita asked [Appellant] to walk
     her home. [Id. at 60]. Bonita lived with her mother in the
     same apartment complex as Mr. Towles and it was not
     uncommon for Ms. Brown to sometimes spend the night with Mr.
     Towles. [Id. at 33, 60]. [Appellant] and Bonita departed from
     the Bar and proceeded back to McClay Street apartments at or
     around 11:00 [p.m.]. [Id. at 22, 61].

            Upon arriving, Bonita wanted to check on her mother, who
     she believed was in Mr. Towles’ apartment, and asked
     [Appellant] to stay with her. [Id. at 60-61]. Bonita and
     [Appellant] then proceeded to Mr. Towles’ apartment where
     Bonita knocked on the door, [thus] awakening Mr. Towles. [Id.
     at 22, 61]. Subsequently, Mr. Towles opened the door and
     confronted [Appellant] and Bonita. [Id.]. [Appellant] assert[ed]
     [at trial] that, at this time, Mr. Towles began berating Bonita
     with names and came at him “like a gorilla[,]” causing him to


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      fear for his safety. [Id. at 61-62]. Mr. Towles, on the other
      hand, assert[ed] [at trial] that he was calm and simply inquired,
      “What’s up[?]” [Id. at 22]. [In response], Bonita sprayed Mr.
      Towles twice in the face with mace and [Appellant] physically
      struck Mr. Towles with his fists multiple times[,] causing him to
      fall to the floor.   [Id. at 22-23, 66]. Upon regaining his
      composure, Mr. Towles retreated back into his residence and
      locked the door. [Id. at 25]. He then proceeded to the
      bathroom and began to rinse out his eyes when he heard his
      window shatter. [Id. at 25-26].

            At this point, Mr. Towles believed he saw [Appellant] and
      Bonita standing outside the broken window. [Id. at 26]. Mr.
      Towles instinctively reached for an old broken wooden rifle to
      scare off Bonita and [Appellant]. [Id.]. [Appellant] then yelled,
      “Shoot, motherfuckers.” [Id. at 26, 66]. After which, he and
      Bonita proceeded to leave[,] and Mr. Towles subsequently called
      911. [Id.]. Officers from the Harrisburg City police department
      and paramedics responded. [Id. at 40-41].

            Upon arriving on scene, Officer Amy Bright (“Officer
      Bright”) and her partner, along with other officer[s] from the
      Harrisburg City police department, [proceeded into the] McClay
      Street apartment [complex.] [Id. at 41]. Mr. Towles then let
      them into his apartment where Officer Bright witnessed the
      broken window and blood everywhere. [Id. at 41-42]. Mr.
      Towles was disoriented and clearly injured. [Id. at 42-43]. As a
      result, Mr. Towles was transported to Pinnacle Health Harrisburg
      Hospital where he received stitches to repair a laceration to his
      lip and was treated for a broken jaw. [Id. at 31]. [Appellant]
      was charged with a summary offense[.] [Id. at 44]. This was
      then upgraded to simple assault when Officer Bright received
      evidence confirming that Mr. Towles[’] jaw had in fact been
      broken. [Id.].

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 11/19/15, at 1-3.

      At the conclusion of all testimony, the jury convicted Appellant of

simple assault as to Mr. Towles, and on May 12, 2015, the trial court

sentenced him to one month to twenty-three months in prison, as well as

directed the payment of fines and restitution. On May 13, 2015, Appellant


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filed a timely, counseled post-sentence motion, and on September 17, 2015,

Appellant filed a counseled notice of appeal.     Thereafter, Appellant’s post-

sentence motion was denied by operation of law.2            All Pa.R.A.P. 1925

requirements have been met.

       Appellant’s first contention is the evidence was insufficient to sustain

his conviction for simple assault. Specifically, he avers the Commonwealth

did not disprove his claim of self-defense beyond a reasonable doubt.         In

this regard, Appellant contends Mr. Towles initiated the attack by attacking

him “like a gorilla,” Appellant struck Mr. Towles to stop the attack, and

Appellant left when Mr. Towles fell to the ground. Appellant’s Brief at 19.

              The standard we apply in reviewing the sufficiency of the
       evidence is whether viewing all the evidence admitted at trial in
       the light most favorable to the verdict winner, there is sufficient
       evidence to enable the fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying the above test,
       we may not weigh the evidence and substitute our judgment for
       the fact-finder.   In addition, we note that the facts and
       circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
       defendant's guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
____________________________________________


2
  We observe that Appellant prematurely filed his notice of appeal while his
post-sentence motion was pending. See Commonwealth v. Borrero, 692
A.2d 158, 159-60 (Pa.Super. 1997). However, as noted, the post-sentence
motion was subsequently denied by operation of law, and thus, we will not
quash the appeal. See Commonwealth v. Little, 879 A.2d 293, 296 n.6
(Pa.Super. 2005).




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      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder 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.

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010)

(citations omitted).

      The Crimes Code defines Simple Assault as follows:

      (a) Offense defined.—Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if
      he:
      (1) attempts to cause or intentionally, knowingly or recklessly
      causes bodily injury to another[.]

18 Pa.C.S.A. § 2701(a)(1) (bold in original).

      “[U]nder Section 505 of the Pennsylvania Crimes Code, the burden is

on the Commonwealth to prove beyond a reasonable doubt that the

defendant's act was not justifiable self-defense.” Commonwealth v.

McClendon, 874 A.2d 1223, 1229-30 (Pa.Super. 2005).

      The Commonwealth sustains this burden if it establishes at least
      one of the following: 1) the accused did not reasonably believe
      that he was in danger of death or serious bodily injury; or 2) the
      accused provoked or continued the use of force; or 3) the
      accused had a duty to retreat and the retreat was possible with
      complete safety.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa.Super. 2014) (citation

omitted).

      Here, Appellant relevantly testified at trial that, when Mr. Towles

answered the apartment door, he called Bonita names and was aggressive

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“like a gorilla.”    N.T., 3/3/15, at 61-62.        He indicated Bonita maced Mr.

Towles, who was “like dazed [by] the mace[,]” and then Mr. Towles came at

Appellant as if he was going to attack him, at which point Appellant punched

him “two or three times.” Id. at 61-66.

      In contrast to Appellant’s testimony, Mr. Towles testified that he

opened    the     door,    asked   the   couple    “[w]hat’s   up[,]”   and      Appellant

“immediately took his left hand and connected to [Mr. Towles’] head with it.”

Id. at 22.      He testified Bonita then sprayed him with mace and Appellant

“kept on hitting [him].” Id. at 23. He indicated he fell to the ground and

Appellant “stood over top of [him] swinging and hitting [him].”                   Id.    He

denied hitting Appellant or Bonita, indicating “I just opened the door. After

that, it was just raining fists.” Id. at 25.

      The jury was free to believe Mr. Towles’ testimony, which established

the elements necessary for simple assault, as well as established Appellant

provoked the attack and could have safely retreated prior to hitting Mr.

Towles.    This     does     not   render    the    evidence     insufficient.          See

Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 1062, 1066 (1995)

(holding that “the jury was free to disbelieve the evidence proffered by [the]

appellant in support of [his] claim of reduced intent and/or self-defense”);

Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584, 589 (1990)

(providing that “[a]lthough the Commonwealth is required to disprove a

claim of self-defense arising from any source beyond a reasonable doubt, a


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jury is not required to believe the testimony of the defendant who raises the

claim”).      Accordingly, we find no merit to Appellant’s first claim.

       Appellant’s next contention is the jury’s verdict is against the weight of

the evidence.3 Specifically, he avers Mr. Towles’ “testimony was unreliable,

contradictory, and inconsistent with the remainder of the testimony.”

Appellant’s Brief at 16. In this regard, he argues Mr. Towles testified that

Appellant struck him ten times; however, Officer Bright testified that she

was informed that Mr. Towles was punched one time.               Id.      Moreover,

Appellant notes that Mr. Towles testified at the preliminary hearing that he

observed Appellant kick in his window; however, he told police he saw

Appellant throw a chair through the window, and at trial he testified he did

not know how Appellant broke the window. Id. at 16-17. Finally, Appellant

suggests that Mr. Towles testified at trial that Appellant said, “Shoot

motherfucker[,]” but then changed his testimony, indicating Appellant said,

“Shoot nigger.” Id. at 17.

       The Supreme Court has set forth the following standard of review for

weight of the evidence claims:

              The essence of appellate review for a weight claim appears
       to lie in ensuring that the trial court's decision has record
       support. Where the record adequately supports the trial court,
       the trial court has acted within the limits of its discretion.
                                          ***
____________________________________________


3
  Appellant presented his weight of the evidence claim in his timely post-
sentence motion.



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           A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. 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 judge is to determine that
     notwithstanding all the facts, 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.
                                       ***
           An appellate court's standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court. 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.

Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054-55 (2013)

(citations and quotation omitted). In order for an appellant to prevail on a

challenge to the weight of the evidence, “the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.”

Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa.Super. 2003).

     Mr. Towles testified that Appellant punched him multiple times, “way

over 10,” including after he fell to the ground. N.T., 3/3/15, at 25. While

Officer Bright acknowledged her police report reflected that Appellant

punched Mr. Towles once with a closed fist, the jury was free to weigh the

testimony and resolve the conflicts in the testimony. The fact the jury chose

to believe Mr. Towles’ testimony in this regard does not render the verdict

against the weight of the evidence. See Clay, supra.

     Additionally,   as   to   the   alleged   discrepancy   in   Mr.   Towles’

testimony/reports of how Appellant broke his window, as well as Mr. Towles’

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discrepancy in whether Appellant said “motherfucker” or “nigger,” the jury

was free to believe all, part, or none of the testimony and weigh the

discrepancies.    Appellant asks this Court to re-weigh the evidence and

assess the credibility of the witness presented at trial, a task that is beyond

our scope of review.      Simply put, the verdict is not so contrary to the

evidence as to shock the conscience, and, thus, the trial court properly

denied Appellant’s weight of the evidence claim. Sullivan, supra.

       In his final contention, Appellant avers the trial court erred in

precluding admission of evidence regarding the prior bad acts of Mr. Towles.

Specifically, he argues “evidence of Mr. Towles’ prior acts of violence should

have   been    admitted   in   order   to    determine   the   reasonableness    of

[Appellant’s] claim of self-defense.”       Appellant’s Brief at 24-25.   Appellant

suggests he should have been permitted to testify regarding a previous

episode wherein Mr. Towles was violent towards Ms. Brown. Id. at 25. In

response, the Commonwealth argues that any error in this regard is

harmless. We agree with the Commonwealth.

       At trial, Appellant testified that he defended himself against Mr. Towles

and “[t]his isn’t the first time this happened between [him] and Mr.

[Towles].”    N.T., 3/3/15, at 63.     Appellant was then permitted to testify

regarding a prior incident, which allegedly occurred two or three months

previously, wherein Mr. Towles became drunk and aggressive towards

Appellant. Id. at 63. Moreover, when defense counsel asked if this was the


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only other incident when Mr. Towles had become aggressive, Appellant

testified, “No. I seen him when he was in his apartment. Me and him and

[Ms. Brown] were sitting there drinking beers.” Id. at 63.4

       Additionally,    on   cross-examination            by   the   prosecutor,   Appellant

reiterated that, on a previous occasion, he had to defend himself against Mr.

Towles and opined that “[h]e’s a bully.” Id. at 71. Appellant also testified

on cross-examination that, on the night in question, Bonita was “looking for

her mother[, Ms. Brown,] to make sure her mother was okay because of []

prior behavior with [Mr. Towles] and her mom.” Id. at 73.

       The record reflects that the jury was made aware of Mr. Towles’

alleged prior bad acts of violence. Thus, Appellant is not entitled to relief.

Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556, 561 (2002)

(“Harmless error exists where: (1) the error did not prejudice the defendant

or the prejudice was de minimis[.]”) (quotation marks and quotation

omitted)).

       Moreover, in light of the overwhelming evidence of Appellant’s guilt,

we conclude that any error in the preclusion of the evidence did not

prejudice Appellant or the prejudicial effect of any error was de minimis. Id.

(“Harmless     error    exists   where:.       .   .(3)    the   properly   admitted    and

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4
  At this point, the trial court sustained the Commonwealth’s objection to
further testimony regarding the alleged previous altercation between Mr.
Towles and Ms. Brown. Id. at 63-65.



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uncontradicted evidence of guilt was so overwhelming and the prejudicial

effect of the error was so insignificant by comparison that the error could not

have contributed to the verdict.”) (quotation marks and quotation omitted)).

Appellant admitted that he appeared at Mr. Towles’ door late at night and he

did not strike Mr. Towles until after Mr. Towles was dazed by the mace

sprayed by Bonita.5       See N.T., 3/3/15, at 61.        Appellant’s own testimony

established, at the very least, that he could have safely retreated from Mr.

Towles’ front door, thus ending the incident.            However, instead, Appellant

remained and struck Mr. Towles.                In short, any error in precluding the

testimony regarding Mr. Towles’ alleged prior violent acts towards Ms. Brown

was so insignificant by comparison to the properly admitted evidence of guilt

that it is clear that any error could not have contributed to the verdict.

Hutchinson, supra.

       For all of the foregoing reasons, we affirm.




____________________________________________


5
  For instance, Appellant testified as follows at trial: “[Mr. Towles] and
[Bonita] got to arguing. He was coming out like aggressive toward her.
That is when she sprayed him. Then he turned around. He was like dazed
with that mace[.] He was coming at me. That’s when the altercation
started.” N.T., 3/3/15, at 61.




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     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2016




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