J-S13037-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                   Appellee                  :
                                             :
          v.                                 :
                                             :
TIMOTHY (JR.) WILLIAM NICHOLSON              :
                                             :
                   Appellant                 :   No. 1361 WDA 2018

    Appeal from the Judgment of Sentence Entered September 10, 2018
              in the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0002100-2017

BEFORE:        BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED MAY 21, 2019

      Timothy (Jr.) William Nicholson (Appellant) appeals from the judgment

of sentence imposed following his convictions for endangering the welfare of

a child (EWOC), simple assault, and harassment. Upon review, we affirm.

      In September 2017, a criminal complaint was filed against Appellant,

charging him with, inter alia, the abovementioned crimes.        These charges

arose from a domestic violence incident between Appellant and his then-

girlfriend, K.B.   Eventually, Appellant proceeded to a jury trial.   We begin

with a summary of the facts presented at Appellant’s trial.

      K.B. testified that in September 2017 she was living with Appellant

and their one-year-old daughter, K.N. (Child), in a trailer on property owned

by Appellant’s mother.         N.T., 9/5/2018, at 16-17. K.B. testified that on

September 14, 2017, she and Appellant were outside of Appellant’s trailer,


*Retired Senior Judge assigned to the Superior Court.
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located approximately 50 feet from a trailer owned by Appellant’s mother,

arguing about Child’s first birthday party.    Id. at 18, 39, 45. At the time,

K.B. was holding Child in her arms. Id. at 19. Specifically, Child was awake

and on K.B.’s left hip.     Id.   K.B. testified that at some point during the

argument, Appellant “smacked” K.B. in the face. Id. K.B. then entered the

trailer to gather some belongings and told Appellant that she was going to

have her father come pick her up. Id. at 20.

      K.B. testified that Appellant did not want her to leave and followed her

into the trailer.   Id.   According to K.B., while she was still holding Child,

Appellant came up from behind, put his arm around K.B.’s neck and

“squeezed” until she passed out.       Id. at 20-21. K.B. did not remember

falling but woke up on the ground next to Child, who was crying. Id. at 21.

K.B. picked up Child and went outside to call her parents.          Id.   While

outside, K.B. encountered Appellant who “said he was scared, he did[ not]

know what to do and he was sorry.” Id. at 23. K.B. spoke with her sister

and father and “told them to come get [her] and to call the cops.” Id. K.B.

testified that she brought Child to the hospital because there was a “bump

on her head and [] red marks on the” left side of her head. Id. at 24. At

the hospital, Child was diagnosed with a “fractured bone in her shoulder.”1


1
 This was confirmed by Dr. Mark Douglas Hilborn, a diagnostic radiologist at
Connellsville Hospital. Dr. Hilborn testified at Appellant’s trial that Child
presented at the hospital with a fractured clavicle. Id. at 10-11. Dr. Hilborn
opined that traditionally, this type of fracture occurs from a fall and that the
resulting injury would cause an individual to be in severe pain. Id. at 12-13.

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Id. at 25. In addition to Child’s injuries, K.B. suffered “brush burns” and was

bleeding.     Id.   On cross-examination, K.B. admitted that she takes

Suboxone, but testified that she was not using drugs on the day of the

altercation. Id. at 29.

        Next, Corporal Thomas J. Ulintz of the Pennsylvania State Police

testified that he received a dispatch call and arrived to the scene shortly

thereafter.   Id. at 32.   Corporal Ulintz testified that when he arrived he

observed K.B., Appellant, and members of each of their respective families

arguing and shouting with one another, while K.B. was attempting to remove

items from the trailer.    Id. at 32-33.    Corporal Ulintz also witnessed K.B.

with “cuts or brush burns to both hands and wrists” and minor bleeding. Id.

at 33.    Corporal Ulintz observed that Child was crying and had “a pretty

sizeable lump for that age of child” on the back of her head. Id. Corporal

Ulintz testified that he took statements from the parties and let K.B. leave

the scene to take Child to the hospital. Id. at 34-35.

        The defense called Appellant’s “mother and sister to testify.       They

testified that [Appellant] was in his mother’s trailer, which is right next to his

trailer, at the time the incident happened.” Trial Court Opinion, 11/1/2018,

at 8.    During her direct testimony, Appellant’s mother testified that she

believed Child fell down the stairs of Appellant’s trailer while in K.B.’s care.

N.T., 9/5/2018, at 39.




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        Following trial, Appellant was convicted of the aforementioned crimes,

and on September 10, 2018, the trial court sentenced Appellant to an

aggregate 12 to 24 months of incarceration plus costs and fines. Appellant

did not file a post-sentence motion. This timely-filed appeal followed.2 On

appeal, Appellant challenges the sufficiency of the evidence to sustain his

EWOC and simple assault convictions.3 Appellant’s Brief at 4.

        Before we address the merits of Appellant’s issues, we must determine

whether he preserved them for appeal. In his Rule 1925(b) statement,

Appellant fails to specify precisely which elements of the crimes the

Commonwealth failed to prove. In its opinion to this Court, the trial court,

while ultimately addressing the merits of Appellant’s claims, opined that the

lack of specificity in Appellant’s concise statement should result in waiver of

his issues on appeal. Trial Court Opinion, 11/5/2018, at 2-3.

        This Court has repeatedly required an appellant to specify in the Rule

1925(b) statement the particular element or elements upon which the

evidence was insufficient.

        An appellant’s concise statement must properly specify the error
        to be addressed on appeal. In other words, the Rule 1925(b)
        statement must be specific enough for the trial court to identify
        and address the issue [an appellant] wishe[s] to raise on appeal.
        [A] [c]oncise [s]tatement which is too vague to allow the court
        to identify the issues raised on appeal is the functional

2
 Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
3
    Appellant does not challenge his harassment conviction.


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      equivalent of no [c]oncise [s]tatement at all. The court’s review
      and legal analysis can be fatally impaired when the court has to
      guess at the issues raised. Thus, if a concise statement is too
      vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) appeal

denied, 32 A.3d 1275 (Pa. 2011) (internal citations and quotations omitted).

Based upon this Court’s desire to apply Rule 1925 in a “predictable, uniform

fashion,” this Court has determined that waiver applies even where, as here,

the Commonwealth fails to object and the trial court addresses the issue in

its Rule 1925(a) opinion. Commonwealth v. Roche, 153 A.3d 1063, 1072

(Pa. Super. 2017).      In light of the foregoing, we are inclined to find

Appellant’s issues waived. See Hansley, 24 A.3d at 415 (finding Hansley’s

claim that “[t]he evidence presented by the Commonwealth was insufficient

to prove beyond a reasonable doubt that [Hansley] was guilty of

[r]obbery[,]” waived for lack of specificity).

      Regardless, even if Appellant did not waive his sufficiency claims, he

would still not be entitled to relief. Our standard of review in challenges to

sufficiency of the evidence is to determine

      whether, viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as 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

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      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).   Appellant’s sufficiency challenges rest upon a similar

premise; so we shall address them together. The crux of Appellant’s

argument is that there was testimony presented that K.B. “could have

passed out due to her use of Suboxone and dropped [] Child[,]” and

therefore, the Commonwealth could not sustain its burden in proving

Appellant guilty of EWOC and simple assault. Appellant’s Brief at 9-10.

      Here, while presented as two sufficiency claims, Appellant’s argument

on appeal is essentially challenging the weight of the evidence, asking this

Court to reweigh the evidence presented at trial in his favor. This we will

not do. Our case law is clear that the finder of fact is “in the best position to

view the demeanor of the Commonwealth’s witnesses and to assess each

witness’[s] credibility.” Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa.

Super. 2013) (citation omitted). Thus, it was within the province of the jury,

as fact-finder, to believe K.B.’s testimony that Appellant choked her until she

passed out while holding Child and discredit the testimony of Appellant’s

mother and sister and the insinuations made throughout trial that K.B. was

on drugs at the time of the incident and was responsible for Child’s injuries.

See Commonwealth v. Miller, 172 A.3d 632, 642 (Pa. Super. 2017)




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(“Resolving contradictory testimony and questions of credibility are matters

for the finder of fact.”).

      Moreover, in reviewing these issues as properly preserved sufficiency

claims, we find the Commonwealth met its burden of proving each and every

element of the crimes for which Appellant was convicted that he now

challenges on appeal.4 As aptly set forth by the trial court:

             Based on the testimony presented by the Commonwealth
      at trial, there was sufficient evidence for the jury to find that
      [Appellant] was guilty of [EWOC. Appellant] was the father of
      [Child]. The statute explicitly names parents as those having a
      duty to protect their children. [Child] was one year[] old–a
      child– when she suffered the injuries.

            [Appellant’s] conduct clearly violated the statute. He was
      arguing with [K.B.] while she was holding [Child] in her arms.
      [K.B.] was still holding [Child] when [Appellant] wrapped his arm


4
  As stated supra, on appeal, Appellant challenges his EWOC and simple
assault convictions. Appellant’s Brief at 4.

      [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 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)
(internal quotation marks omitted). “Pursuant to 18 Pa.C.S.[] § 2701, ‘[a]
person is guilty of [simple] assault if he: (1) attempts to cause or
intentionally, knowingly, or recklessly causes bodily injury to another.’ 18
Pa.C.S.[] § 2301 defines ‘bodily injury’ as ‘[i]mpairment of physical condition
or substantial pain.’” Commonwealth v. Klein, 795 A.2d 424, 428 (Pa.
Super. 2002).



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      around [K.B.’s] neck and began to choke her, causing [K.B.] to
      pass out. As a natural result of [K.B.] passing out, [Child] fell
      onto a hardwood floor and suffered injuries to her head and
      shoulder. [Appellant’s] conduct violated his duty to care for,
      protect, and support his daughter.[5]

                                    ***

             In addition to the evidence already discussed, the
      Commonwealth also established that [Appellant] committed
      simple assault on [K.B.] by the following testimony. [K.B.]
      testified that as a result of being choked by [Appellant] and
      falling, she suffered brush burns on her left wrist and on her
      arm. [K.B.] was also bleeding. Additionally, Corporal Ulintz
      testified that when he was at the scene, he saw that [K.B.]
      suffered from “cuts or brush burns to both hands and wrists,
      causing them minor bleeding.”

           By putting his arm around [K.B.’s] neck and squeezing,
      [Appellant] caused her to pass out, fall to the hardwood floor,


5 In his brief, Appellant specifically mentions the “‘knowingly part of the
[EWOC] statute,” arguing that the Commonwealth “failed to demonstrate
that Appellant was aware that [C]hild was in circumstances which could
threaten the child’s physical welfare.” Appellant’s Brief at 8. With respect to
this argument, we note that “[t]he ‘knowing’ element of the crime applies to
the general issue of whether the defendant knew that he was endangering
the child’s welfare, not whether the defendant knew that he would cause any
particular result.”   Commonwealth v. Smith, 956 A.2d 1029, 1038 (Pa.
Super. 2008). In Smith, this Court found that

      [i]t takes nothing more than common sense for an adult, let
      alone an experienced father such as [Smith] to know that
      violently shaking an infant child with enough force to cause an
      abusive head trauma could threaten the child’s physical and/or
      psychological welfare. Thus, there was sufficient evidence to
      support the jury’s decision that Appellant knowingly violated a
      duty of care, protection or support.

Id. at 1038-39 (2008) (footnote omitted). Similarly, we find Appellant’s
actions towards K.B., while Child was in her arms, sufficient- to support the
jury’s determination that Appellant knowingly violated his duty of care,
protection or support.


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      and suffer injuries. Because this happened after an argument, it
      can be inferred that [Appellant] did this intentionally, out of
      anger. Further, [Appellant] told [K.B.] he was sorry after it
      happened.

Trial Court Opinion, 11/5/2018, at 7-9 (citations omitted).   In light of the

foregoing, Appellant’s sufficiency claims fail.

      Accordingly, after a review of the briefs, record, and applicable case

law, we are not persuaded that Appellant’s issues warrant relief from this

Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 5/21/2019




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