J-S79003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TORRENCE A. ALLEN                        :
                                          :
                    Appellant             :   No. 840 MDA 2018

          Appeal from the Judgment of Sentence April 24, 2018
 In the Court of Common Pleas of Lackawanna County Criminal Division at
                    No(s): CP-35-CR-0002118-2017


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                  FILED: MARCH 27, 2019

      Appellant, Torrence A. Allen, appeals from the judgment of sentence

entered on April 24, 2018, in the Lackawanna County Court of Common Pleas.

We affirm.

      The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

             At [a nonjury] trial, the Commonwealth called Mrs. Bonnie
      Wolo, the alleged victim in the case. (N.T. 3/20/18 at p. 18). Mrs.
      Wolo explained that she had a long history with [Appellant].
      During the course of their romance, there were numerous
      occurrences of domestic violence. Specifically, she recalled an
      incident in June of 2017 where [Appellant] became angry over
      smashing his thumb. She testified that he grabbed her by her hair
      and started yelling at her over the injury. (N.T. 3/20/18 at p. 23-
      24). She also described another incident that occurred sometime
      around July 4, 2017. An argument ensued over [Appellant’s]
      daughter’s boyfriend. She testified [Appellant] struck her on the
      right side of her face. (N.T. 3/20/18 at p. 25).
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           On September 12, 2017, the date the incident took place,
     Mrs. Wolo [testified] that she and [Appellant] had been home and
     he had been drinking. (N.T. 3/20/18 at p. 28). She was making
     dinner and at some point, [Appellant] became upset and began
     screaming at her. He started throwing dishes and food across the
     room. (N.T. 3/20/18 at p. 32). He proceeded to push her and she
     walked away, continuing to prepare dinner. (N.T. 3/20/18 at p.
     27-30-31). After dinner, the argument became physical with
     [Appellant] grabbing her by the hair, causing her to be pulled off
     the ground and leaving her with patches of hair missing from her
     scalp. (N.T. 3/20/18 at p.39). [Appellant] then pulled her down
     and hit her head off his leg. She testified she lost her partial dental
     plate due to the impact (N.T. 3/20/18 at p.39).

            Mrs. Wolo called 911 and stood outside to wait for the police
     officers to arrive. (N.T. 3/20/18 at p. 44). Officers Brett Griffiths
     and John Cantafio arrived at the residence. After speaking with
     the victim, the officers went into the residence and spoke to
     [Appellant]. (N.T. 3/20/18 at p. 44-46).

            The Commonwealth called Officers Griffiths and Cantafio as
     witnesses. [Officer] Griffiths testified that he met with Mrs. Wolo
     who gave him a statement of what occurred, relaying the incidents
     of the evening. (N.T. 3/20/18 at p. 114). Officer Cantafio testified
     that Mrs. Wolo had informed him of her missing partial dental
     plate. (N.T. 3/20/18 at p. 141). She told the officer that she might
     have swallowed it or maybe it was on the living room floor. He
     went inside and looked for it but could not find it. (N.T. 3/20/18
     at p. 142). The Commonwealth called two more witnesses, Ashley
     Wolo, and Bonnie Wolo, daughters of the victim. They both
     testified about events that transpired after the alleged assault.

            [Appellant] testified in his own defense. (N.T. 3/20/18 at p.
     174). He testified that he started dating Mrs. Wolo after she wrote
     him letters while he was in the Lackawanna County Prison. (N.T.
     3/20/18 at p. 175). [Appellant] stated that his relationship with
     Mrs. Wolo ended in May 2017, even though they were still living
     together in September when this incident happened. (N.T.
     3/20/18 at p. 182). He stated that they would argue about
     frivolous things, but denied ever hitting Mrs. Wolo. (N.T. 3/20/18
     at p. 180). Specifically, he stated he never pulled her hair or
     slapped her. (N.T. 3/20/18 at p. 181). He testified that at the time
     of the incident he was planning on moving out because Mrs. Wolo


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        was threatening to call his parole officer to get him in trouble.
        (N.T. 3/20/18 at p. 182).

               With respect to the events of September 12, 2017,
        [Appellant] stated he helped Mrs. Wolo with the dishes. (N.T.
        3/20/18 at p. 188). He then passed out after working 16 hours on
        that day. (N.T. 3/20/18 at p. 189). He claims he never called her
        into the living room, never pulled her hair, and never grabbed her
        to pull her down to his leg (N.T. 3/20/18 at p. 190). He also stated
        he never threw chairs or anything in the kitchen as depicted in
        pictures submitted into evidence and through the testimony of the
        witnesses. (N.T. 3/20/18 at p. 191).

              At the conclusion of the testimony, this court entered an
        order finding [Appellant] guilty of the single count [of] summary
        harassment.[1]

Trial Court Opinion, 8/20/18, at 1-3. On May 16, 2018, Appellant filed a timely

notice of appeal. Both the trial court and Appellant complied with Pa.R.A.P.

1925.

        On appeal, Appellant raises the following issues for this Court’s

consideration:

        I. Whether there was sufficient evidence and whether the verdict
        was against the weight of the evidence to support the trial court’s
        finding of Harassment as the Commonwealth did not prove beyond
        a reasonable doubt that [Appellant] committed Harassment?

        II. Did the trial court err in allowing undocumented/unreported
        prior incidents of domestic violence/assaultive behavior with
        regard to the alleged victim to be considered by the finder of fact,
        under Rule of Evidence 404(b)?




____________________________________________


1   18 Pa.C.S. § 2709(a)(1).



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Appellant’s Brief at 4.2

       In his first issue on appeal, Appellant avers that the evidence was

insufficient to prove the offense of harassment beyond a reasonable doubt.3

Appellant avers that the Commonwealth did not establish intent. Appellant’s

Brief at 10. We disagree.         Our standard for review of a sufficiency-of-the-

evidence claim is as follows:

              When presented with a claim that the evidence was
       insufficient to sustain a conviction, an appellate court, viewing all
       of the evidence and reasonable inferences therefrom in the light
       most favorable to the Commonwealth as the verdict winner, must
       determine whether the evidence was sufficient to enable the fact-
       finder to find that all elements of the offense were established
       beyond a reasonable doubt.

Commonwealth v. Woody, 939 A.2d 359, 361 (Pa. Super. 2007) (citation

omitted). Additionally, “[t]he Commonwealth may sustain its burden by



____________________________________________


2In his brief, Appellant challenged the admissibility of testimony under Pa.R.E.
404(b) first, and he then raised the challenge to the sufficiency of the
evidence. We have renumbered these issues because when we address the
sufficiency of the evidence, we must consider all of the testimony presented
during the trial, without consideration as to its admissibility. Commonwealth
v. Sanford, 863 A.2d 428, 431-432 (Pa. 2004). A review of the sufficiency
of the evidence is not assessed on a diminished record; where improperly
admitted evidence has been allowed to be considered by the factfinder, its
subsequent deletion does not justify a finding of insufficient evidence. The
remedy in such a case is the grant of a new trial. Id.

3 In his statement of questions presented, Appellant also asserts that the
verdict was against the weight of the evidence. However, in the argument
portion of his brief, Appellant addresses only the sufficiency of the evidence.
Accordingly, Appellant has waived his challenge to the weight of the evidence
by failing to present an argument in support thereof. Commonwealth v.
Woodard, 129 A.3d 480, 509 (Pa. 2015).

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proving the crime’s elements with evidence which is entirely circumstantial

and the trier of fact, who determines credibility of witnesses and the weight

to give the evidence produced, is free to believe all, part, or none of the

evidence.” Id. (quoting Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.

Super. 1997)).

      Harassment is defined, in relevant part, as follows:

      (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;

18 Pa.C.S. § 2709(a)(1).

      As noted, Appellant alleges that the Commonwealth failed to establish

an intent to harass. In addressing the interpretation of the statutory phrase

“with intent to harass,” this Court has stated as follows:

      The law does not permit an actor to avoid the consequences of his
      conduct by disclaimers of an intent to injure or harm or offend or
      “harass.” Rather, the law obliges the factfinder to rely for the
      discernment of intent upon demonstrative manifestation of that
      intent. Every action produces a reaction, every act has an effect.
      The nature or essence of an act is most often, and usually
      convincingly, determined by its effect or result. When an individual
      knows or should know the consequences of his act, he is presumed
      to be aware of the nature of his act, and his decision to perform
      the act is a manifestation of his intent to effect the results of his
      act. The assigned task of the [factfinder] was to determine
      whether appellant knew or should have known that an effect of
      his [actions] would be to harass the [the victim].




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Commonwealth v. Hart, 559 A.2d 584, 587 (Pa. Super. 1989) (quoting

Commonwealth v. Kozinn, 552 A.2d 1096, 1098 (Pa. Super. 1989)).

      In the case at bar, the evidence established that Appellant screamed at

Mrs. Wolo, threw dishes and food across the room, pushed her, lifted her off

the floor by her hair causing patches of her hair to come out of her scalp,

pulled her head down, and hit her head off his leg. N.T., 3/20/18 at 27-39.

Appellant’s attack on Mrs. Wolo caused her to lose her dental plate due to the

impact. Id. at 39. In light of our standard of review, we conclude that the

the Commonwealth established every element of harassment, including

intent, beyond a reasonable doubt.

      Finally, Appellant challenges the admissibility of evidence under Pa.R.E.

404(b). Appellant argues that the trial court abused its discretion in allowing

Mrs. Wolo to testify regarding two prior instances of alleged domestic violence.

As noted above, Mrs. Wolo testified that in June of 2017, Appellant became

angry after he hurt his thumb moving a refrigerator, and he grabbed her by

her hair and started yelling at her about his injury. N.T., 3/20/18, at 23-24.

Mrs. Wolo also testified about an argument she had with Appellant in July of

2017 regarding Appellant’s daughter’s boyfriend.       Id. at 25.    Mrs. Wolo

explained that this argument culminated in Appellant striking her on the right

side of her face. Id.

      Our standard of review is well settled:

      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused

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      its discretion. An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the law,
      or the exercise of judgment that is manifestly unreasonable, or
      the result of bias, prejudice, ill-will or partiality, as shown by the
      evidence of record.

Commonwealth v. Biesecker, 161 A.3d 321, 329-330 (Pa. Super. 2017)

(citation omitted).

      At the outset, it is axiomatic in a criminal trial that all evidence offered

by the prosecution will be prejudicial to the defendant. Commonwealth v.

Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996). Under the Pennsylvania Rules

of Evidence, “[e]vidence of a crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.” Pa.R.E. 404(b)(1). However,

“[t]his evidence may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident. In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Pa.R.E. 404(b)(2). “To be admissible under this exception, there

must be a specific logical connection between the other act and the crime at

issue which establishes that the crime currently being considered grew out of

or was in any way caused by the prior set of facts and circumstances.”

Biesecker, 161 A.3d at 330 (internal citation and quotation marks omitted).

The Pennsylvania Supreme Court has also recognized the res gestae exception

that permits the admission of evidence of other crimes or bad acts to tell the


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complete story. Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. 2014)

(internal quotations and citation omitted).      Moreover, the trial court is not

“required to sanitize the trial to eliminate all unpleasant facts from …

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses for

which the defendant is charged[.]” Commonwealth v. Lark, 543 A.2d 491,

501 (Pa. 1988). Finally, “it is presumed that a trial court, sitting as fact-finder,

can and will disregard prejudicial evidence.” Commonwealth v. Fears, 86

A.3d 795, 819 (Pa. 2014) (citation omitted).

      After review, we conclude there was no abuse of discretion in the trial

court’s decision.    The Pennsylvania Supreme Court has explained that

evidence of prior bad acts is admissible where the distinct crime or bad act

“was part of a chain or sequence of events which formed the history of the

case and was part of its natural development.”               Commonwealth v.

Drumheller, 808 A.2d 893, 905 (Pa. 2002). In Drumheller, evidence of the

appellant’s prior incidents of domestic violence was admitted at trial. This

evidence revealed that the appellant repeatedly assaulted his former

girlfriend, Carol Huttenstine, and these incidents occurred during the three

years preceding the date when the appellant ultimately stabbed Ms.

Huttenstine to death. Id. Our Supreme Court concluded that the evidence of

prior violence revealed “the chain or sequence of events that formed the

history of the case, is part of the natural development of the case, and


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demonstrate[d the appellant’s] motive, malice, intent, and ill-will toward [Ms.]

Huttenstine.” Id.

      The trial court concluded as follows:

             Similar to Drumheller, this court found that [Appellant’s]
      prior incidents of abuse were admissible pursuant to rule 404(b)
      because they permitted the Commonwealth to establish the
      continuing and escalating nature of [Appellant’s] abuse toward
      [Mrs. Wolo] as part of a connected series or chain of events that
      led up to the September 12, 2017 incident.

Trial Court Opinion, 8/20/18, at 5-6. We agree with the trial court.

      The evidence at issue provided the complete story in this case, and we

conclude this testimony was more probative than prejudicial.       Mrs. Wolo’s

testimony concerning the prior incidents of violence revealed the escalating

violence to which Appellant subjected her. The prior acts illustrated physical

violence similar to the September 12, 2017 incident, which included Appellant

pulling Mrs. Wolo’s hair and striking her in the head. Pursuant to our standard

of review, we discern no abuse of discretion in the trial court admitting this

testimony into evidence under Pa.R.E. 404(b).

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2019




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