J-S38025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TAHIJ A. JOHNSON

                            Appellant              No. 1334 MDA 2014


          Appeal from the Judgment of Sentence entered May 9, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No: CP-40-CR-0000899-2013


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 08, 2015

       Appellant, Tahij A. Johnson, appeals from the judgment of sentence

entered for his conviction of aggravated assault and other crimes. Appellant

challenges the trial court’s refusal to award a new trial based on the weight

of the evidence. We affirm.

       On February 20, 2013, Misty Williamson was at her house, 24 Essex

Lane, Wilkes-Barre, Luzerne County, with Appellant, Rassan Hoskins, and

John Longfoot.1 Williamson and Appellant had dated one another for a brief

period.   The four were drinking 90-proof vodka. Hoskins became angry at

the way Appellant was speaking to Williamson, and Hoskins and Appellant

began to argue. The verbal altercation turned physical, and it moved from
____________________________________________


1
  Unless otherwise noted, these facts are taken from the Trial Court
Pa.R.A.P. 1925(a) Opinion, 11/26/14, at 1-4.
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the kitchen of Williamson’s house to the backyard area.         That area is a

parking lot, which was empty that night. Large boulders about one foot in

height separate Williamson’s parking spaces from her neighbors.

      Williamson followed Hoskins and Appellant outside. She believed the

fight was getting out of control, so she intervened.        Williamson started

yelling and tried to separate the two by pushing Hoskins off Appellant. In

response, Appellant pushed her. Williamson fell, hitting the right side of her

head on one of the boulders.

      Williamson was bleeding below her right eyebrow, so she went to the

second-floor bathroom of her house to clean herself. At that point, her jaw

and nose were uninjured. Appellant entered the house and went upstairs.

Hoskins and the other man had left. Williamson remembers being punched

in the left side of her face by Appellant. After that point, Williamson could

not remember what happened next.

      Officers James Fisher and Steven Lada reported to Williamson’s house.

They saw two people fleeing, and they tried to enter the house, but two pit

bulls were loose inside. Upon entering, the officers encountered Williamson

in the kitchen. Her face was bleeding and badly swollen. Her injuries were

so severe that Officer Fisher testified, “I’ve seen people in car accidents that

didn’t look that bad.” N.T. Trial, 4/9/14, at 133. When asked if Appellant

caused her injuries, Williamson nodded affirmatively.       She indicated that

Appellant was upstairs inside the house.




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      Officer Lada heard movement and saw Appellant climbing out of a

second-floor window. The officer yelled at Appellant to stop, but he ignored

them. The officers deployed their Tasers, Officer Fisher unsuccessfully and

Officer Lada successfully, and they apprehended Appellant.       Officer Fisher

later filed charges against Appellant.

      An      ambulance   transported    Williamson   to   Geisinger   Hospital.

Williamson told medical personnel there that Earl Johnson, her ex-boyfriend

from six or seven years ago, caused the injuries. She later admitted that

she did not want Appellant to get in trouble.

      Williamson’s injuries were serious, and are permanent. Her jaw was

broken in three places, her nose was broken, her eye socket was broken,

and she needed stiches on her right eyebrow. She underwent surgery and

had three plates and three screws inserted into the left side of her face. Her

jaw was wired shut for eight weeks. During that time, Williamson could not

eat solid food, so she subsisted on Boost nutritional drinks, cream of wheat,

and other soft food. She was unable to live by herself, so she stayed with

her sister.    Williamson is permanently unable to chew on one side of her

mouth, has no feeling on the left side of her chin, and must drink liquids

with a straw. Her nose is permanently disfigured.

      Williamson testified that she was afraid of Appellant on February 20,

2013, and that she did not have contact with him after that night. Appellant

nevertheless sent Williamson a letter:




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        I’m changing for myself and you right this moment. And I will
        not turn back because I don’t ever want to make another
        mistake like this.

        I’ll stick up for you if they try to say you were harboring a
        fugitive. Call me as a witness and I’ll tell them that I wasn’t
        staying at the house. Please don’t let them convince you into
        burying me under the jail. They just want a case.

        I’m on bent knees and begging you to forgive me for this wrong
        I have done.

        P.S., I know they’re riding your heels for testimony at court.
        Don’t let them tear us apart. We belong together. I belong to
        you and you belong to me.

        P.S.S. I’m not mad at you. Just please don’t show up at court.

Trial Court Opinion, 11/26/14, at 4 (quoting N.T. Trial, 4/9/14, at 100-03).

Testifying in his own defense, Appellant admitted to writing the letter—which

constituted a violation of a Protection from Abuse Act2 order—because he

“wanted to let [Williamson] know that [he] loved her,” id. at 210. Appellant

generally denied injuring Williamson.

        The jury convicted Appellant of aggravated assault, simple assault,

and resisting arrest.3 The trial court sentenced Appellant to 7 to 14 years in

prison, followed by 2 years of probation. It later denied his post-sentence

motion, which included a request for a new trial based on the weight of the

evidence. See Pa.R.Crim.P. 607(A). This appeal followed.
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2
    23 Pa.C.S.A. §§ 6101-22.
3
  18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), and 5104, respectively. The
parties agreed to sever a charge of flight to avoid apprehension, 18
Pa.C.S.A. § 5126. (Appellant was charged with burglary prior to the night of
Williamson’s assault.)


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      On appeal, Appellant asks us to review the following question:

      Whether the verdict was against the weight of the evidence
      when the evidence demonstrates that the complaining witness
      was accidentally injured after intervening in a physical
      altercation between the appellant and another male individual?

Appellant’s Brief at 4 (all-caps font removed).

      The trial court determines whether the jury’s verdict is against the

weight of the evidence in the context of a post-trial motion for a new trial.

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

      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, 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.

Id. (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)

(emphasis added in Clay)) (internal citations omitted). Thus, we review the

trial court’s denial of the defendant’s motion for a new trial for an abuse of

discretion. Id.

      As charged in this case, a person is guilty of aggravated assault if he

“attempts to cause serious bodily injury to another, or causes such injury

intentionally, knowingly, or recklessly under circumstances manifesting

extreme   indifference   to   the   value   of human life[.]”   18 Pa.C.S.A.

§ 2701(a)(1). Appellant claims he never intended to injure Williamson, who

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was accidentally hurt while intervening in the fight between Appellant and

Hoskins.     Appellant also claims Williamson could not remember how her

injuries occurred, and had been drinking alcohol before being hurt.

Appellant does not dispute the weight of the evidence showing that

Williamson suffered serious bodily injury.

      Regarding Appellant’s intent, it is true that a person who justifiably

uses self-defense is not criminally liable for recklessly injuring an innocent

bystander.    See Commonwealth v. Fowlin, 710 A.2d 1130, 1134 (Pa.

1998).     There was no finding, however, that Appellant was justifiably

defending himself when fighting with Hoskins.         Moreover, to be guilty of

aggravated assault, the Commonwealth did not need to prove intent to

injure, since Williamson indisputably suffered serious bodily injury.        The

Commonwealth       needed    to   prove      only    mere   recklessness   under

circumstances manifesting extreme indifference to the value of human life.

Appellant further errs in looking in isolation at the altercation that took place

in Williamson’s backyard, which resulted in an injury to the right side of her

face. Appellant fails to acknowledge Williamson’s broken nose, jaw, and eye

socket, and injuries to the left side of her face.

      In arguing that Williamson could not remember how her more serious

injuries occurred, Appellant cherry-picks evidence from the record for

favorable evidence while ignoring inculpatory evidence. He fails to address

Williamson’s testimony that she remembered being hit by Appellant on the

left side of her face. Appellant ignores evidence tending to show that only

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he and Williamson were present inside her house when she suffered those

injuries. Appellant fails to address his attempt to flee by jumping out of a

second-floor window, which shows consciousness of guilt.           The jury also

could consider Appellant’s letter sent to Williamson as evidence of guilt.

Moreover, in contending that the police officers never secured forensic

evidence   to    bolster   Williamson’s   testimony,   Appellant    neglects   to

acknowledge that corroboration was not required. In any event, Appellant

does not argue that any forensic investigation would have been exculpatory.

Indeed, the only exculpatory evidence Appellant presented at trial was his

own self-serving testimony.

      We have reviewed the record and the evidence presented at trial. As

stated above, “[a] trial court’s denial of a motion for a new trial based on a

weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008).                Appellant

here has not convinced us that the trial court abused its discretion in

denying a new trial based on weight of the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2015




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