J-A11039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
    ANTHONY CHARLES SCAMACK                    :
                                               :
                        Appellant              :     No. 1004 MDA 2017


              Appeal from the Judgment of Sentence June 13, 2017
                in the Court of Common Pleas of Adams County
               Criminal Division at No.: CP-01-CR-0001024-2016


BEFORE:      STABILE, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                           FILED SEPTEMBER 18, 2018

        Appellant, Anthony Charles Scamack, appeals from the judgment of

sentence imposed following his jury conviction of endangering the welfare of

a child (EWOC),1 and his summary conviction, by the trial court, of

harassment.2         Specifically, he put out a cigarette on the cheek of his

girlfriend’s seven-year-old daughter.          Appellant chiefly challenges the

sufficiency, the weight, and the exclusion of certain evidence. We affirm.

        We derive the facts of the case from the trial court’s Rule 1925(a)

opinion, filed July 14, 2017, its opinion and order denying Appellant’s post-




____________________________________________


1   18 Pa.C.S.A. § 4304.

2   18 Pa.C.S.A. § 2709.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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verdict motions, filed April 27, 2017, and our independent review of the

record.

      Appellant’s convictions stem from the report by M.M.R., (the Victim),

then age seven, that he burned her left cheek with a cigarette. No one else

was present to witness the incident. At the time, the Victim’s mother was

living with Appellant, her boyfriend, and eight of his relatives in the home of

his parents. The Victim alternated multi-day visits with both parents. The

Victim would stay over when her Mother had custody. Mother and Father were

actively disputing custody.

      When the Victim returned to her Father two days later, he noticed the

burn on her cheek.     Father reported that the Victim told him that “Tony”

(Appellant) did it, on purpose.   Father took his daughter to an emergency

room when he could not get an immediate appointment with her pediatrician.

Dr. Elizabeth Wiest, the emergency room doctor, treated the victim and

notified the police.

      Appellant denied everything, as did the rest of his household, including

the Victim’s own Mother, who claimed to have bathed the Victim on the night

in question and not to have noticed anything unusual.

      Appellant hypothesized that the Victim may have received her wound

from a fall onto a circular object at a playground, or an insect bite. Appellant

also claimed that Father made the incident up to gain advantage in a

contentious custody dispute over the Victim (and her older sister).


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       At trial, Appellant sought to introduce evidence that the custody battle

was extremely hostile.3 The trial court permitted one mention of a contentious

ongoing custody dispute, but prohibited further reference.

       The jury convicted Appellant of EWOC, but acquitted him of simple

assault.   The trial court found Appellant guilty of the summary offense of

harassment.      On June 13, 2017, the trial court sentenced Appellant to

placement in the intermediate punishment program for thirty-six months with

six months in restrictive intermediate punishment and the remainder of the

sentence to be served on restorative sanctions.      (See Trial Court Opinion,

7/14/17, at 2.).       This timely appeal followed the trial court’s denial of

Appellant’s post-verdict motion for a directed verdict or a new trial, on April

27, 2017.4 (See Order, 4/27/17; see also Opinion on Post-Verdict Motion for

Directed Verdict, 4/27/17).

       Appellant presents seven questions for our review:

              1. [Did] the [t]rial [c]ourt commit[ ] an error of law or
       abuse[ ] its discretion in refusing to permit defense counsel to
       fully present the extremely hostile nature of the on-going custody
       dispute between the Father of the alleged victim, who initially


____________________________________________


3Procedurally, defense counsel filed a motion in limine, which the trial court
denied, except for the one restricted reference.

4 Appellant filed a court-ordered statement of errors on July 11, 2017. See
Pa.R.A.P. 1925(b). For the benefit of counsel, we note that the brief should
have included a copy of the statement of errors. See Pa.R.A.P 2111(a)(11),
(d). The brief should also have included a copy of the trial court’s Rule 1925(a)
opinion. See Pa.R.A.P. 2111(b). Counsel has also failed to certify compliance
with the word count limit. See Pa.R.A.P. 2135(a)(1).

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      reported the alleged incident, and [Appellant’s] paramour (the
      victim’s mother) as motive in defense of the alleged charge[?]

           2. [Was there] insufficient evidence to prove beyond a
      reasonable doubt that the alleged injury was, in fact, a cigarette
      burn[?]

           3. [Was there] insufficient evidence to prove that
      [Appellant] is a “person supervising the welfare of a child”[?]

            4. [Was there] insufficient evidence that [Appellant]
      endangered the welfare of a child by “violating a duty of care,
      protection or support”[?]

             5. [Did the trial court commit] an error of law or abuse[ ] its
      discretion in failing to sustain [Appellant’s] argument that
      incontrovertible facts so contradicted the testimony of the only
      witness making the allegation, that her testimony could not be
      accepted as it was either mistaken or false and the verdict based
      on it should not be sustained[?]

            6. [Was the] verdict . . . against the weight of the
      evidence[?]

            7. [Was there] insufficient evidence to find [Appellant] guilty
      of harassment as there was no evidence that [Appellant] intended
      to harass, annoy or alarm the victim[?]

(Appellant’s Brief, at 5-6).

      Appellant’s first claim challenges an evidentiary ruling. Our standard of

review for a trial court’s decision whether to admit or exclude evidence is well-

settled:

            The admissibility of evidence is a matter for the discretion
      of the trial court and a ruling thereon will be reversed on appeal
      only upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.

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Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015), cert. denied,

137 S. Ct. 89 (2016) (citations and internal quotation marks omitted).

      Preliminarily, on this first issue, Appellant fails to develop an argument

for his claim supported by pertinent discussion and citation to authorities.

(See Appellant’s Brief, at 22-27); see also Pa.R.A.P. 2119(a), (b).

      To the contrary, Appellant merely recites general facts of the case and

posits that the trial court’s exclusion of evidence detailing the contentious

nature of the custody dispute (and an interview of the judge who presided

over the custody dispute), prejudiced him by preventing presentation of a

motive for Father to fabricate a story to obtain custody. Notably, Appellant

presents no authority whatsoever in support of his claim. (See Appellant’s

Brief, at 22-27).   Accordingly, his issue is waived.    See Pa.R.A.P. 2101,

2119(a), (b).

      Moreover, it would not merit relief.    Appellant fails to establish that

Father did manufacture any evidence.       At most, he surmises that Father

might have had a motive to fabricate. Appellant’s bald assertion of a motive,

without more, amounts to nothing but speculation and conjecture. The trial

court acted well within its discretion in excluding any such evidence, where

the potential for undue prejudice outweighed any possible probative value.

      Finally, we note in general that Appellant repeatedly asserts throughout

the brief, including this first issue, that the Victim did not implicate him in

burning her, or denied it outright. (See, e.g., Appellant’s Brief, at 26) (“The

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child failed to make any statement about the Defendant doing anything to

her.”).

      The record confirms that the Victim was sometimes reluctant to talk

about the incident with law enforcement, counselors, etc.              However,

declarations that the Victim “failed to make any statement about the

Defendant doing anything to her” are overblown, inaccurate, misleading, and

highly disingenuous. (Id.).

      On repeated occasions, the Victim unequivocally named Appellant as the

person who deliberately burned her cheek with his cigarette. (See, e.g., Trial

Ct. Op., 7/14/17, at 1-2) (trial court re-counting Victim’s report on March 7,

2016 to Pennsylvania State Trooper Kyler Hull that her mother’s boyfriend had

put cigarette out on her face; trial court relating that on April 28, 2016 Victim

told Pennsylvania State Trooper Scott Masci and Corporal Dawn Smith that

Appellant burnt her face with his cigarette, on purpose). At trial, the Victim

testified that Appellant burned her with a cigarette on the left side of her face.

(See N.T. Trial, 4/06/17, at 39). The Victim testified consistently on cross-

examination. (See id. at 48-65).

      In any event, importantly, the Victim further testified that her Mother

told her to say that Appellant did not burn her with a cigarette. (See id. at

47, 61). Appellant is also reported as having ordered the Victim not to talk to

anyone. Having ordered the Victim to say nothing, he cannot now argue that

the Victim was reluctant to identify him.


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          Furthermore, the jury, sitting as factfinder, was entitled to weigh

Mother’s (and Appellant’s) direct instructions seeking to stop the Victim from

naming Appellant at all, in considering the Victim’s sporadic reluctance to

implicate Appellant.      Appellant’s first claim is waived, and would not merit

relief.

          Appellant’s second, third, fourth and seventh claims all challenge the

sufficiency of the evidence. Notably, Appellant fails in general to establish

that any specific element of his crimes were not proven. Instead, he broadly

denies guilt, and mostly attacks the credibility of the Commonwealth’s

witnesses, in actuality a challenge to the weight of the evidence. (See, e.g,

Appellant’s Brief, at 28 (“The [Victim’s] testimony is not credible . . . .”)).

          Our standard of review for a challenge to sufficiency is well-settled:

                 The standard we apply when 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 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 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. Furthermore,
          when reviewing a sufficiency claim, our Court is required to give

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      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused’s guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275–76 (Pa. Super. 2014)

(citations omitted).   “Nevertheless, the Commonwealth need not establish

guilt to a mathematical certainty.” Commonwealth v. Hecker, 153 A.3d

1005, 1008 (Pa. Super. 2016), appeal denied, 169 A.3d 576 (Pa. 2017)

(citation omitted).

      In pertinent part, our Crimes Code defines the offense of EWOC as

follows:

            (1) A parent, guardian or other person supervising the
      welfare of a child under 18 years of age, or a person that employs
      or supervises such a person, commits an offense if he knowingly
      endangers the welfare of the child by violating a duty of care,
      protection or support.

                                   *    *    *

             (3) As used in this subsection, the term “person supervising
      the welfare of a child” means a person other than a parent or
      guardian that provides care, education, training or control of a
      child.

18 Pa.C.S.A. § 4304(a) (1), (3).

      The offense of harassment is defined in pertinent part as follows:




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            (a) Offense defined.−A person commits the crime of
      harassment when, with intent to harass, annoy or alarm another,
      the person:

               (1) strikes, shoves, kicks or otherwise subjects the
         other person to physical contact, or attempts or threatens
         to do the same;

               (2) follows the other person in or about a public place
         or places;

             (3) engages in a course of conduct or repeatedly
         commits acts which serve no legitimate purpose;

               (4) communicates to or about such other person any
         lewd, lascivious, threatening or obscene words, language,
         drawings or caricatures;

             (5) communicates repeatedly in an             anonymous
         manner;

               (6)   communicates      repeatedly     at    extremely
         inconvenient hours; or

               (7) communicates repeatedly in a manner other than
         specified in paragraphs (4), (5) and (6).

18 Pa.C.S.A. § 2709(a).

      In this appeal, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, with the benefit of all reasonable

inferences, it is abundantly apparent that none of Appellant’s sufficiency

claims merit relief.    Specifically, Appellant’s first sufficiency challenge,

(Question # 2), asserts that there was insufficient evidence to prove the “the

alleged injury was, in fact, a cigarette burn.” (Appellant’s Brief, at 28; see

also id. at 28-33). We disagree.




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      Appellant’s    argument    acknowledges     but    misapprehends     the

fundamental nature of a sufficiency challenge and overlooks the requirement

that we view the evidence in the light most favorable to the Commonwealth,

as verdict winner, together with the benefit of all reasonable inferences to be

drawn from the evidence.        See Slocum, supra at 275-76; (see also

Appellant’s Brief, at 28).

      Viewed in that light, as we must under our standard of review, there can

be no serious dispute that the Commonwealth established that the Victim’s

injury was a cigarette burn.

      Moreover, it bears noting that on appeal counsel for Appellant

embellishes the record to make the testimony sound more favorable to him

than it really was. For example, in Appellant’s brief, counsel asserts that Dr.

Elizabeth Wiest, the emergency room physician, “further opined that the injury

was just as consistent with the child falling at the playground and hitting

her head on something circular.” (Appellant’s Brief, at 32) (emphasis added)

(record citation omitted).

      That was not Dr. Wiest’s testimony. In fact, Dr. Wiest did not “opine,”

on cross-examination in any formal sense at all. Rather, she merely answered

defense counsel’s hypothetical questions.

      On direct examination, Dr. Wiest testified that the Victim’s injury was

consistent with the Victim’s independent report (Father had left the room), of




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a cigarette burn by Appellant. (See N.T. Trial, 4/06/17, at 100). In pertinent

part, Dr. Wiest’s actual testimony on cross-examination was as follows:

               Q. Aren’t there other possible explanations for that type of

      lesion other than a cigarette burn?

               A. There could have been, yes.

               Q. And there was no pus coming out of it at the time, was

      there?

               A. On my examination, no, there was no pus.

               Q. So if the report had been that perhaps the child had

      fallen at the school or playground or hit her head, that might be

      consistent with what you saw on that picture as well[,] is that

      right?

               A. If she had struck something circular, that could have

      been the case if it had opened up, yes.

(Id. at 101) (emphases added).

      Under our standard of review, viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, the Commonwealth

established that the Victim’s injury was a cigarette burn, even leaving aside

the odds of falling on “something circular.”

      Similarly, in general disregard of our standard of review, Appellant

argues “[t]he expert opinion [of certified child abuse expert Lori D. Frasier,

M.D.], therefore, only confirmed the injury ‘could have been a cigarette


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burn,’ not that it definitively was a cigarette burn beyond a reasonable doubt.”

(Appellant’s Brief, at 33) (emphases added).5

       This internal “quote” is demonstrably inaccurate. In plain fact, it is false.

It never appears in Dr. Frasier’s opinion letter.6 What Dr. Frasier did write

was: “The lesion, in my opinion, has much more of an appearance of a burn

than a scratch or an insect bite that has been scratched. The child’s history

of the incident is the most important factor.” (Opinion Letter of Lori D. Frasier,

M.D. to Pennsylvania State Police Trooper Scott Masci, June 8, 2013; see also

N.T. Trial, 4/06/17, at 125). Later in the letter, Dr. Frasier adds: “It is far

more likely that this injury was caused by cigarette (sic), based upon all the

information I have been provided, than by an accidental mechanism.” (Id.;

see also N.T. Trial, 4/06/17, at 126) (emphasis added).           Appellant’s first

insufficiency claim does not merit relief.

       In Appellant’s second challenge to sufficiency, (Question #3), Appellant

posits that there was insufficient evidence to prove that he is a “person

supervising the welfare of a child” within the meaning of the EWOC statute.

(Appellant’s Brief, at 34; see also id. at 34-36). This claim also lacks merit.

       [T]o support a conviction under the EWOC statute, the
       Commonwealth must establish each of the following elements: (1)
       the accused is aware of his/her duty to protect the child; (2) the
____________________________________________


5Dr. Frasier’s opinion letter was admitted by stipulation and read to the jury.
(See N.T. Trial, 4/06/17, at 123-25).

6 (See Opinion Letter of Lori D. Frasier, M.D. to Pennsylvania State Police
Trooper Scott Masci, June 8, 2013).

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     accused is aware that the child is in circumstances that could
     threaten the child’s physical or psychological welfare; and (3) the
     accused has either failed to act or has taken action so lame or
     meager that such actions cannot reasonably be expected to
     protect the child’s welfare.

Commonwealth v. Wallace, 817 A.2d 485, 490–91 (Pa. Super. 2002),

appeal denied, 833 A.2d 143 (Pa. 2003), cert. denied, 541 U.S. 907 (2004)

(quotation marks and citation omitted).

     The Wallace Court continued:

          With regard to the EWOC statute, we further recognize the
     Pennsylvania Supreme Court’s statement in Commonwealth v.
     Mack, 467 Pa. 613, 359 A.2d 770, 772 (1976), that:

                [T]he purpose of juvenile statutes, as the one at issue
        here, is basically protective in nature. Consequently these
        statutes are designed to cover a broad range of conduct in
        order to safeguard the welfare and security of our children.
        Because of the diverse types of conduct that must be
        circumscribed, these statutes are necessarily drawn
        broadly. It clearly would be impossible to enumerate every
        particular type of adult conduct against which society wants
        its children protected.      We have therefore sanctioned
        statutes pertaining to juveniles which proscribe conduct
        producing or tending to produce a certain defined result
        . . . rather than itemizing every undesirable type of conduct.

                                 *     *      *

              “The common sense of the community, as well as the
        sense of decency, propriety and the morality which most
        people entertain is sufficient to apply the statute to each
        particular case, and to individuate what particular conduct
        is rendered criminal by it.”

     Id. (emphasis omitted) (quoting Commonwealth v. Marlin, 452
     Pa. 380, 305 A.2d 14, 18 (1973)). Thus, according to the dictates
     of Mack, statutes such as this are to “be given meaning by
     reference to the ‘common sense of the community’ and the broad
     protective purposes for which they are enacted.” Id. at 772.

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Wallace, supra at 491.

      Here, noting that he is not a parent or guardian of the Victim, Appellant

maintains that the mere fact that he is a “live-in boyfriend,” who “occasionally

assumed the status of a caretaker,” of the daughter of his live-in girlfriend, is

insufficient to find him guilty under EWOC. (Appellant’s Brief, at 34).      We

disagree.

      In an age when nontraditional living arrangements are
      commonplace, it is hard to imagine that the common sense of the
      community would serve to eliminate adult persons residing with a
      non-custodial child from the scope of a statute protecting the
      physical and moral welfare of children. 18 Pa.C.S.A. § 4304
      Official Comment, 1972. Accepting appellant’s argument would
      be to accept the idea that this statute is limited to only those
      persons with permanent, temporary, or other quasi-legal custody
      of children. The common sense interpretation of the language of
      the statute and this Court’s recent case law do not support such a
      narrow reading.

Commonwealth v. Brown, 721 A.2d 1105, 1107 (Pa. Super. 1998)

(footnote omitted); accord Commonwealth v. Kellam, 719 A.2d 792, 796

(Pa. Super. 1998), appeal denied, 740 A.2d 1145 (Pa. 1999) (holding criminal

liability not limited to biological or adoptive parents).

      As aptly noted by the Commonwealth, under controlling case law, “A

person does not have to be the parent or guardian of a child to be criminally

liable for endangering the welfare of a child.” (Commonwealth’s Brief, at 13

(citing Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007)).

Additionally, a person is within the scope of liability when they reside with the




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child and violate a duty of care. See Brown, supra at 1107–08; accord,

Commonwealth v. Leatherby, 116 A.3d 73, 81 (Pa. Super. 2015).

      Appellant’s third claim does not merit relief.

      Appellant’s over-lapping fourth claim also fails. Appellant contends that

there was insufficient evidence that he violated a duty of care, protection or

support. (See Appellant’s Brief, at 37-39). We disagree.

      In this claim, citing cases where the defendants were convicted of both

aggravated assault and EWOC, Appellant argues that because the jury in this

case acquitted him of simple assault, he cannot be convicted of EWOC by

burning the child with a cigarette. (See id. at 38). We disagree.

      Preliminarily, we observe that apart from the cases affirming sentence

(and conviction), Appellant offers no authority in support of his argument

denying that he can be convicted.      (See id. at 37-38).    Appellant argues,

without the benefit of pertinent controlling authority, that the two verdicts are

inconsistent. Appellant’s claim is waived. See Pa.R.A.P. 2101, 2119(a), (b).

      Moreover, it would not merit relief. Appellant’s contention overlooks the

consistent affirmance of our Supreme Court of “the long-standing and well-

established principle that consistency in a verdict is not required” and

its refusal “to speculate upon the nature of the jury’s deliberations.”

Commonwealth v. Moore, 103 A.3d 1240, 1247 (Pa. 2014) (quoting

Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012)) (emphases

added).


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      While recognizing that the jury’s verdict appears to be
      inconsistent, we refuse to inquire into or to speculate upon the
      nature of the jury’s deliberations or the rationale behind the jury’s
      decision. Whether the jury’s verdict was the result of mistake,
      compromise, lenity, or any other factor is not a question for this
      Court to review. We reaffirm that an acquittal cannot be
      interpreted as a specific finding in relation to some of the
      evidence, and that even where two verdicts are logically
      inconsistent, such inconsistency alone cannot be grounds
      for a new trial or for reversal. Furthermore, the “special
      weight” afforded the fact of an acquittal plays no role in the
      analysis of inconsistent verdicts, because, by definition, one of the
      verdicts will always be an acquittal.

Miller, supra at 1213 (citations omitted) (emphasis added).

      Appellant’s fourth claim overlooks controlling precedent. It is waived

and would not merit relief.

      Appellant’s fifth claim asserts that the Victim’s complaint was

contradicted by incontrovertible facts. (See Appellant’s Brief, at 6, 40-43).

He argues that photographs of the Victim at play “after the time of the alleged

incident[,]” admitted into evidence, require that this Court overturn his

conviction. (Id. at 42). We disagree.

      Appellant relies on Lamp v. Pennsylvania R.R. Co., 158 A. 269 (Pa.

1931), which explained the incontrovertible physical facts rule as follows:

             It is now the established law of this state that, where the
      testimony of a witness is contradicted by incontrovertible physical
      facts, the testimony of such witness cannot be accepted, it being
      either mistaken or false, and a verdict based on it will not be
      sustained. Courts are not required to believe that which is
      contrary to human experience and the laws of nature, or which
      they judicially know to be incredible.

Id. at 271 (citations and quotation marks omitted).


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     Appellant’s reliance on the rule here is misplaced. The incontrovertible

physical facts rule can be applied only where the facts are positive, clear,

indisputable and certain. See Commonwealth v. Newman, 470 A.2d 976,

979 (Pa. Super. 1984). “Moreover, the rule does not confer infallibility upon

photographic evidence.” Id.

            The incontrovertible physical facts rule, upon which the
     Court below based its conclusion, does not award to photographs
     the infallibility contemplated by the Court of Lehigh County. A
     photograph is merely pictorial testimony. While it is properly
     assumed that the lens of a camera will not lie, the reliability of the
     resulting product, insofar as evidence in a factual controversy is
     concerned, depends on many factors which have little or nothing
     to do with the fidelity of the mechanical process which transfers a
     physical object from tangible reality to an intangible image on
     paper. Many questions must be answered before a photograph
     may be accepted as incontrovertible. When was the picture
     taken? Had the photographed objects been moved since the
     happening which is the subject of dispute? Who took the picture?
     At what angle was the shot made? It is common knowledge that
     a given condition may be so photographed from different angles
     as to produce conflicting views of the situation under the camera’s
     lens. The formidable Wigmore speaks of photographic testimony
     with vigor and conviction, as follows:

               We are to remember, then, that a document
        purporting to be a map, picture, or diagram, is, for
        evidential purposes simply nothing, except so far as it has a
        human being’s credit to support it. It is mere waste paper,-
        testimonial nonentity. It speaks to us no more than a stick
        or a stone. It can of itself tell us no more as to the existence
        of the thing portrayed upon it than can a tree or an ox. We
        must somehow put a testimonial human being behind it (as
        it were) before it can be treated as having any testimonial
        standing in court. It is somebody’s testimony,-or it is
        nothing. It may, sometimes, to be sure, not be offered as
        a source of evidence, but only as a document whose
        existence and tenor are material in the substantive law
        applicable to the case,-as where, on a prosecution for
        stealing a map or in ejectment for land conveyed by deed

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          containing a map, the map is to be used irrespective of the
          correctness of the drawing; here we do not believe anything
          because the map represents it. But whenever such a
          document is offered as proving a thing to be as therein
          represented, then it is offered testimonially, and it must be
          associated with a testifier. (III Wigmore on Evidence, Sec.
          790, page 174.)

Heimbach v. Peltz, 121 A.2d 114, 116–17 (Pa. 1956) (citations and internal

quotation marks omitted).

       Here, Appellant misapplies the incontrovertible physical facts rule. The

photographs do not entitle him to a reversal of the jury’s verdict, or that of

the trial court. Appellant’s fifth claim does not merit relief.

       Appellant’s sixth claim challenges the weight of the evidence.7 (See

Appellant’s Brief, at 6).       Appellant chiefly argues that the Victim did not

volunteer a statement implicating him to various people in the immediate

aftermath of the incident, and otherwise made contradictory statements.

(See id. at 44-49).

       Our scope and standard of review of a weight of the evidence claim is

well-settled:

             The finder of fact is the exclusive judge of the weight of the
       evidence as the fact finder is free to believe all, part, or none of
       the evidence presented and determines the credibility of the
       witnesses.

             As an appellate court, we cannot substitute our judgment
       for that of the finder of fact. Therefore, we will reverse a jury’s
       verdict and grant a new trial only where the verdict is so contrary
____________________________________________


7 Appellant properly preserved his challenge to the weight of the evidence in
a motion for a new trial filed on April 19, 2017.

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      to the evidence as to shock one’s sense of justice. A verdict is
      said to be contrary to the evidence such that it shocks one’s sense
      of justice when the figure of Justice totters on her pedestal, or
      when the jury’s verdict, at the time of its rendition, causes the
      trial judge to lose his breath, temporarily, and causes him to
      almost fall from the bench, then it is truly shocking to the judicial
      conscience.

             Furthermore, where the trial court has ruled on the weight
      claim below, an appellate court’s role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the weight
      claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274–75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted). “Thus, the 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), cert. denied, 556 U.S. 1106 (2009) (citation omitted).

      In its Rule 1925(a) opinion, the trial court explained that it found the

allegedly inconsistent statements attributed to the Victim “sorely lacking in

reliability.” (Trial Ct. Op., 7/14/17, at 9). To the contrary, the trial court

found the testimony of the Victim to be the most credible and the most

consistent. (See N.T. Sentencing, 6/13/17, at 16).

      It is well settled that we must defer to credibility determinations made

by the trial court, which had the opportunity to observe the demeanor and

hear the testimony of the witnesses. See Commonwealth v. Farquharson,

354 A.2d 545, 550 (Pa. 1976).




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      Here, the trial court concluded that the jury’s verdict did not shock one’s

sense of justice. (See Trial Ct. Op., 7/14/17, at 9). We conclude that the

trial court did not palpably abuse its discretion in ruling on the weight claim.

See Boyd, supra at 1274–75. Accordingly, Appellant’s weight claim fails.

      Finally, in Appellant’s seventh claim, he asserts that there was

insufficient evidence for the trial court to convict him of harassment. (See

Appellant’s Brief, at 6). He maintains that there was no evidence of intent.

(See id. at 50). Appellant purports to support this claim by a litany of self-

serving conclusions to the effect that his conduct toward the Victim was always

benign. (See id.). Appellant fails to reference the record for any of these

claims. See Pa.R.A.P. 2119(c). Accordingly, Appellant’s claim is waived.

      Moreover, the claim would not merit relief. “An intent to harass may be

inferred from the totality of the circumstances.” Commonwealth v. Cox, 72

A.3d 719, 721 (Pa. Super. 2013) (citation omitted). Appellant’s claim of no

evidence of intent is waived and would fail on the merits.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/18/2018




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