J-S53010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FLOYD EDWARD PATTERSON

                        Appellant                  No. 1307 MDA 2015


           Appeal from the Judgment of Sentence June 17, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0000903-2014


BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 23, 2016

     Floyd Edward Patterson appeals from the judgment of sentence of

fifteen to forty years imprisonment that was imposed after a jury convicted

him of aggravated assault, simple assault, recklessly endangering another

person, and conspiracy. We affirm.

     The following evidence was adduced at trial. On the night of January

11, 2014, Robert Mohler, a homeless man, was sleeping inside a laundromat

on Penn Street, Reading. The owner of the laundromat had given Mr. Mohler

permission to take shelter in the business due to the cold. The laundromat

and surrounding area were monitored with security cameras.       While Mr.

Mohler was asleep, Ana Ferrer-Reyes and Keith Allison entered the

laundromat and punched and kicked Mr. Mohler, who remained on the


* Former Justice specially assigned to the Superior Court.
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ground. As soon as the pair exited the laundromat, Mr. Mohler called 911.

The call abruptly ended when Ferrer-Reyes and Allison returned to the

laundromat in the company of Appellant and Irich Colon. The four cohorts

proceeded to viciously beat Mr. Mohler and also took his cell phone.

      Colon testified at trial. She indicated that she encountered Appellant,

Ferrer-Reyes, and Allison, all of whom were acquainted with each other,

outside of the laundromat and, after Ferrer-Reyes represented that Mr.

Mohler had harassed her, the four people decided to assault the victim, by

repeatedly kicking and punching him while he was curled up on the floor.

Appellant used a wet-floor sign to inflict some blows. The entire attack was

captured on a videotape, which was shown to the jury.

      When Reading police officers arrived at the scene, Ferrer-Reyes and

Allison were still near the laundromat. Reading Police Officer Vincent Leazier

saw them talking and then observed Ferrer-Reyes “miming as punching into

her hand --- going into an open hand and she was yelling, “Bop, bop, bop[.]”

N.T. Trial, 6/15/14, at 64-65.    Officer Leazier testified that Ferrer-Reyes

said, “I f   ed that n   up.” Id. at 65. Officer Leazier stopped the pair and

placed Ferrer-Reyes under arrest as she had an open warrant.           A search

incident to that arrest revealed that she was in possession of Mr. Mohler’s

cell phone. Allison was also arrested at the scene.

      Due to the extent of his injuries, Mr. Mohler was immediately

transported to the hospital. The parties read the following stipulation into

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the record. Dr. Marc Lewbart was the emergency room physician working

for Saint Joseph’s Medical Center, where the victim was first transported at

12:30 a.m. on January 12, 2014. Mr. Mohler told Dr. Lewbart that had been

“kicked and punched in the chest, arm, face and head.”           Id. at 88.      The

victim   was   transferred   to   Reading    Hospital   and   Medical   Center    at

approximately 2:15 a.m.      The emergency room doctor at that facility, Dr.

Thomas Geng, Jr., would have testified that, during the attack, Mr. Mohler

suffered an acute subdural hematoma on the right cerebral hemisphere of

his brain and a small subdural hemorrhage at the left parietal region. Dr.

Geng also would have reported that an acute subdural hematoma is a clot of

blood that develops between the surface of the brain and the brain’s outer

covering and that an “acute subdural hematoma is a serious bodily injury.”

Id. at 89.

      Immediately after the incident, the laundromat’s owner retrieved a

tape of the assault from the surveillance cameras surrounding the

establishment, and gave it to Reading police, who were unable to identify

Appellant and Colon. Police released the surveillance footage to the public

and received an anonymous tip that one of the assailants was Appellant.

Additionally, after Colon viewed the videotape, she immediately turned

herself into police and told them that she was involved in the assault and

that the other unidentified person on the videotape was Appellant, whom

Colon identified by his street name.

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       Appellant was arrested, and, on February 14, 2014, Reading Police

Sergeant John M. Solecki and Criminal Investigator Aaron Demko conducted

an interview. The interview was recorded and that recording was shown to

the jury.        After he was administered Miranda warnings, Appellant

repeatedly admitted to punching the victim as well as throwing a garbage

can at him. Mr. Mohler died after the incident and did not testify at trial.

       Based on this evidence, on June 17, 2015, a jury convicted Appellant

of aggravated assault, simple assault, recklessly endangering another

person, and conspiracy to commit each of those crimes. On June 17, 2015,

Appellant was sentenced to an aggregate term of fifteen to forty years

imprisonment1 as to the aggravated assault and conspiracy to commit

aggravated assault convictions. On June 26, 2015, Appellant filed post-

sentence motions for a judgment of acquittal, a new trial, and to modify the

sentence. The trial court denied those motions, and Appellant filed a timely

pro se notice of appeal.           Thereafter, Appellant was appointed another

lawyer,    who    filed   a   Pa.R.A.P.   1925(b)   concise   statement   of   errors

complained of on appeal.          Therein, the following issue was raised, “The

verdict was contrary to the sufficiency of the evidence.” Concise Statement


____________________________________________


1
  Appellant had prior convictions for two burglaries, a robbery, a theft, and
delivery of heroin, and his prior record score was five. N.T. Sentencing,
6/17/15, at 9, 12.



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of Matters Complained of on Appeal, 8/26/15, at 1. In his brief, Appellant

presents two issues for our review:

      A. Whether the evidence presented at trial was insufficient as a
         matter of law wherein the Commonwealth’s evidence
         presented at trial failed to establish the identification of
         Appellant?

      B. Whether the verdict was against the weight of the evidence
         wherein the verdict is so contrary to evidence and shocks
         one’s sense of justice where there was no credible testimony
         as to Appellant’s identity?

Appellant’s brief at 4.

      Appellant first avers that there was insufficient evidence to establish

that he was one of the attackers.       He claims that Colon’s report that

Appellant was involved was not credible.         He also suggests that the

recording of his confession “was wrought with errors,” which Appellant fails

to delineate, and he challenges the tape’s “authenticity and accuracy.”

Appellant’s brief at 10. In this context, we employ the following standard of

review:

             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


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       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
       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. Roberts, 133 A.3d 759, 767 (Pa.Super. 2016)

(emphasis added) (quoting Commonwealth v. Brooks, 7 A.3d 852, 856–

57 (Pa.Super. 2010)).

       As the above language demonstrates, the jury was free to credit

Colon’s identification of Appellant as one of the people involved in the attack.

Additionally, the jury viewed the videotape and was able to assess whether

her identification of Appellant was believable.      Finally, Appellant failed to

challenge at trial the admission of the recording of his confession. When the

compact disc depicting the interview was introduced into evidence, Appellant

said that he had, “No objection.” N.T. Trial, 6/15/14, at 94.        He did not

argue that there were flaws in the recording nor did he question its

authenticity or accuracy.2        The recording of the confession, having been

____________________________________________


2
  Appellant suggests in his brief that the entire recording system in the
police station was replaced as defective. However, the record indicates that
the camera and audio system was the same, but the recording device was
substituted for a different one “because we had those one-second blurps
(Footnote Continued Next Page)


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admitted into evidence without objection, must therefore be credited by this

Court under the applicable standard of review.                The confession also

constituted sufficient evidence to identify Appellant as being involved in the

attack on Mr. Mohler. We therefore reject Appellant’s sufficiency challenge.

      Appellant’s second allegation is that there was no credible evidence as

to Appellant’s identity, rendering his convictions against the weight of the

evidence. When we review a challenge to the weight of the evidence, we

examine the trial court's exercise of discretion in resolving the claim rather

than the underlying question itself.             Commonwealth v. Leatherby, 116

A.3d 73, 82 (Pa.Super. 2015) (citation omitted).            This form of review is

necessitated by the fact that the trial judge heard and saw the evidence

presented. Id. Indeed, "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. Only when the verdict is "so contrary

to the evidence that it shocks one's sense of justice and the award of a new

trial is imperative so that right may be given another opportunity to prevail,"

will a new trial be warranted. Commonwealth v. Morales, 91 A.3d 80, 91

(Pa. 2014).
                       _______________________
(Footnote Continued)

that happened a couple times.” N.T. Trial, 6/15/14, at 103. There was no
indication that the recording was inaccurate due to the few one-second
delays in the flow of the recording.



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         In connection with Appellant’s claim, we apply the following pertinent

principle: “The finder of fact—here, the jury—exclusively weighs the

evidence, assesses the credibility of witnesses, and may choose to believe

all, part, or none of the evidence.” Commonwealth v. Sanchez, 36 A.3d

24, 39 (Pa. 2011) (citation omitted); see also Commonwealth v. Page,

59 A.3d 1118, 1130 (Pa.Super. 2013) ("A determination of credibility lies

solely    within   the   province   of   the   factfinder.");   Commonwealth   v.

Blackham, 909 A.2d 315, 320 (Pa.Super. 2006) ("It is not for this Court to

overturn the credibility determinations of the fact-finder.").       Thus, we are

not permitted to conclude that Colon was not believable when she testified

that Appellant took part in the assault.

         In the instant case, the trial court addressed Appellant’s weight claim.

It concluded that the Commonwealth put forth ample evidence at trial to

prove that Appellant took part in the beating of Mr. Mohler. Trial Court

Opinion, 9/30/15, at 7. This evidence included the recording of Appellant’s

confession, Colon’s identification of Appellant as one of the assailants, and

the surveillance videotape capturing the assault. We can discern no abuse

of discretion on the part of the trial court in concluding the verdict was not

against the weight of the evidence.

         Judgment of sentence affirmed.

         Justice Fitzgerald Joins the Memorandum.




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     Judge Shogan concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2016




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