J. A29001/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
DANIEL HARGROVE,                        :         No. 1896 WDA 2013
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, July 2, 2013,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0002069-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 23, 2015

     Daniel Hargrove appeals from the July 2, 2013 judgment of sentence

following his conviction of false reports to law enforcement authorities with

intent to falsely incriminate another person. We affirm.

     The trial court has provided the following relevant facts:

                 In July of 2008, the victim, [Jill] Cueni-Cohen,
           (hereinafter referred to as “Cohen”), had just
           returned to the United States from Switzerland as a
           result of the break-up of her marriage.          Cohen
           returned with her minor son, however she was
           charged with international kidnapping by her
           ex-husband and was looking for an attorney to
           represent her in connection with this charge. She
           met Hargrove in a bar and explained her situation to
           him. The next day Hargrove called her and told her
           that he could help her and they should meet. Their
           attorney-client relationship almost immediately
           developed into a romantic relationship, which lasted
           for approximately three years. At one point Cohen
           moved into Hargrove’s home and resided with him.
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          After approximately three years, she became
          frightened of Hargrove because of his threats to
          harm her and her family.       Hargrove would text
          Cohen at all hours of the day and she became fearful
          of his continued harassment. Cohen described him
          as [a] Dr. Jekyll and Mr. Hyde character and noted
          that when he became drunk, he would text horrible
          things to her. Cohen ended their relationship in
          August of 2011.

                 During the early evening of October 3, 2011,
          Cohen began receiving numerous text messages
          from Hargrove while she was at work. Hargrove
          wanted her to meet with him. He continued to text
          message her asking her to come over and meet with
          him. She responded to one of his text messages by
          saying that he was drunk and he texted back that he
          was not drunk and she should come over and make
          this assessment. Cohen, who is an avid runner was
          not too far from Hargrove’s house and decided to go
          over to his house. When she arrived, she texted him
          and told him that she was outside and he said for
          her to come in and she responded that she would not
          come in and he would have to come outside. He
          started screaming and when he came out, she
          realized that he said that she should shoot him.
          These text messages began at approximately
          8:47 p.m. The last text message that she received
          from Hargrove was shortly before midnight. After
          receiving the last text message from Hargrove,
          Cohen left and started to jog back towards her
          home.

                Hargrove made three 911 calls, the first being
          at 12:18 a.m. on October 4, 2011. In the first call
          he told the 911 operator that his ex-fiancée was
          “blowing up” his phone and wanted him to come
          outside and he believed that she had a weapon. The
          second 911 call occurred at 12:34 a.m. when
          Hargrove was wondering whether the police were
          going to respond to his earlier 911 call. The final
          911 call was made at 1:11 a.m. when Hargrove said
          that he was still receiving messages from a stalker
          and [they] were getting more elevated.


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                    The police arrived at Hargrove’s house at
              12:36 a.m., obtained a description of Cohen, and
              received her phone number. When Officer Shawn
              Frank left Hargrove’s house, he called Cohen on her
              cell phone and asked her to meet him and they
              agreed to meet at the Township Park, located on
              Greenfield Road.       Officer Frank met her at
              approximately 12:56 a.m. and was with her until
              1:43 a.m. At approximately 1:14 a.m., Officer Frank
              received a radio call indicating that Hargrove had
              made an additional call saying that he was receiving
              more text messages from Cohen.         Officer Frank
              noted that in the eighteen minutes that he had been
              with Cohen, she had not used her phone nor did she
              attempt to send any text messages. Officer Frank
              noted that the time their meeting ended at 1:43
              a.m., she had not used her phone nor had she made
              any text messages.

                    Hargrove testified on his own behalf and stated
              that some time during the late night of October 3
              and the early morning of October 4, his phone went
              dead and he had placed it in the charger and that he
              had received so many text messages that his phone
              was refusing to accept any more. It was only after
              his phone had recharged that the messages came
              flooding onto his phone.

Trial court opinion, 6/4/15 at 3-5.

        Appellant was charged with, inter alia,1 false alarm to agency of

public safety and false reports to law enforcement authorities with the intent

of incriminating another person.2     A non-jury trial was held beginning on

April 9, 2013. Appellant was convicted on April 11, 2013, of false reports


1
  Appellant was facing several other charges through a separate criminal
information, which is not before us for the purposes of this review.
2
    18 Pa.C.S.A. §§ 4905(a) and 4906(a), respectively.


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and was acquitted of false alarms to agencies of public safety. On July 2,

2013, appellant was sentenced to one year of probation and was prohibited

from having any contact with Cohen.        Appellant was further ordered to

attend batterer’s intervention.   On July 11, 2013, appellant filed timely

post-sentence motions which were denied on October 29, 2013. Appellant

filed a timely notice of appeal to this court on December 2, 2013.3 The trial

court ordered appellant to submit a concise statement of matters complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant complied with this

order on April 21, 2014. The trial court has filed an opinion.

      Appellant raises the following issue for our review:

            Whether there was insufficient evidence to prove the
            crime of false reports to law enforcement when the
            Commonwealth failed to prove that Appellant gave
            false information, namely that he was being
            threatened and/or harassed by Jill Cueni-Cohen?

Appellant’s brief at 4.

      When reviewing a claim of the sufficiency of the evidence, we are held

to the following standard:

                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is

3
  November 29, 2013, was the day after Thanksgiving, which has been
designated as a court holiday. Therefore, appellant’s filing deadline was
extended to the next business day, which was December 2, 2013. See
1 Pa.C.S.A. § 1908.


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            circumstantial rather than direct so long as the
            combination of evidence links the accused to the
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, this Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

                   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. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted).

      The credibility and weight of the evidence are both matters that are in

the sole purview of the fact-finder. Specifically, when considering whether

the evidence was sufficient to prove each element of a charge beyond a

reasonable doubt, we cannot assume the task of weighing evidence and

making independent conclusions of fact.     Commonwealth v. Lewis, 911

A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding

[an appellant’s] guilt may be resolved by the fact-finder unless the evidence




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is so weak and inconclusive that as a matter of law no probability of fact

may be drawn from the combined circumstances.” Id.

     The statute at issue provides that a “person who knowingly gives false

information to any law enforcement officer with intent to implicate another

commits a misdemeanor of the second degree.”        18 Pa.C.S.A. § 4906(a).

This court has established the four elements that the Commonwealth must

prove beyond a reasonable doubt in order to convict a defendant of false

reports--implicating another:   “(1) the defendant must have made the

statement to a law enforcement officer; (2) the defendant’s statement must

be false; (3) the defendant must know the statement is false; and (4) the

defendant must intend to implicate another.”     Commonwealth v. Soto,

650 A.2d 108, 110 (Pa.Super. 1994).

     Here, the first two elements are not in dispute. The Commonwealth

met the first prong under Soto by presenting evidence that appellant told

the first 911 operator and Sergeant Frank that he was afraid that Cohen

may have a weapon. (Notes of testimony, 4/9/13 at 12, 51.) The second

Soto prong was satisfied when the police determined that Cohen was

unarmed.    (Id. at 53.)   Whether the Commonwealth met its burden in

proving the third prong of Soto is strictly a matter of credibility, which is

within the exclusive purview of the trial court, as fact-finder.   Here, the

Commonwealth presented Cohen’s testimony, which the trial court found

credible, that she is opposed to guns, and that she communicated her



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opposition to guns in the past to appellant.      (Id. at 82-83.)    Finally, the

Commonwealth      met     the   fourth   prong   by   establishing   through   its

case-in-chief that appellant intended to implicate Cohen. Appellant testified

that he felt threatened by the numerous text messages he received from

Cohen and that he believed that Cohen may have had a weapon. (Id. at

150.) The trial court noted multiple times that it found appellant’s testimony

to be lacking credibility. (See trial court opinion, 6/4/15 at 8.)

      As noted above, we are bound by the trial court’s credibility

determinations, as determining credibility is within the sole purview of the

fact-finder.   Credible testimony from the 911 operators who answered

appellant’s calls, Cohen, and Sergeant Frank provide ample factual support

within the record for the trial court’s determination, which cannot be

disturbed. See Stokes, supra at 649.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2015




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