J-S47012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

TRAVIS WRIGHT

                        Appellant                  No. 2730 EDA 2016


           Appeal from the Judgment of Sentence July 28, 2016
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0005096-2015


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                       FILED AUGUST 02, 2017

     Travis Wright appeals from the judgment of sentence entered in the

Lehigh County Court of Common Pleas on July 28, 2016.          After careful

consideration, we affirm.

     On August 30, 2015, Allentown Police responded to a report of an

assault at 1046 West Walnut Street, Apartment 2. Upon arrival, the officers

were directed to a back bedroom where the victim, Shykeem Wallace, was

lying on the floor with a swollen and lacerated face. Wallace appeared to be

semi-conscious. Wallace was taken by ambulance to Lehigh Valley Hospital

– Cedar Crest.

     Lavetta Shipman, the resident of the apartment, told the police that

her husband, Wright, and his brother, co-defendant Brian Wright, assaulted

Wallace. At trial, Travis Wright testified that he went to the apartment to
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give money to his kids and his stepdaughter let him in. After knocking on

the bedroom door, Shipman told Wright to wait, but never opened the door.

Wright knocked two more times and then entered the room to find Wallace

sitting at the end of the bed, Shipman lying on the bed behind Wallace, and

Wright’s two youngest daughters asleep on the bed.

       Wallace did not respond when Wright asked him who he was. Wright

testified that Wallace made a “juke move”1 in his direction, and Wright was

unsure whether Wallace was going to run out of the room or attack him.

N.T. Trial, 06/22/16, at 52, 69. Wright swung at Wallace and the two men

began to fight. After hearing the commotion, Wright’s brother went to the

bedroom, saw the two men fighting, and hit Wallace a few times while

attempting to break up the fight.

       At this point, Wright put Wallace in a chokehold and hit him repeatedly

in the head and upper body. When Wright noticed his children waking up,

he stopped and left the apartment with his brother.            The altercation left

Wallace with a concussion, a laceration to his left cheek that needed

stitches, a fractured nasal bone, fractured eye sockets that required surgery,

and hemorrhaging in both eye sockets.            Wallace testified at trial that he

could not see as far as he could before the incident.



____________________________________________


1
  “[T]o fake out of position (as in football)[.]” MERRIAM-WEBSTER (last visited
July 12, 2017), https://www.merriam-webster.com/dictionary/juke.



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         On June 22, 2016, a jury found Wright guilty of aggravated assault 2

and simple assault,3 and the Honorable James T. Anthony found Wright

guilty of the summary offense of harassment.4              Judge Anthony denied

Wright’s motion for a new trial and, on July 28, 2016, he sentenced Wright

to four to eight years’ imprisonment.          On August 22, 2016, Wright filed a

timely appeal.

         Wright alleges that the jury’s verdict of guilty, with respect to the

aggravated assault charge, was against the weight of evidence presented at

trial.    Specifically, Wright claims that (1) the Commonwealth failed to

disprove his self-defense claim, (2) the Commonwealth failed to prove he

attempted to cause serious bodily injury, and (3) the evidence showed the

fight resulted from mutual agreement of the parties.          Trial Court Opinion,

10/21/16, at 3.

         Conclusions as to what weight to afford the evidence are solely for the

finder of fact, who is “free to believe all, part, or none of the evidence, and

to assess the credibility of the witnesses.”        Commonwealth v. DeJesus,

860 A.2d 102, 107 (Pa. 2004). We cannot substitute our judgment for that

of the finder of fact. See Commonwealth v. Champney, 832 A.2d 403,


____________________________________________


2
    18 Pa.C.S.A. § 2702(a)(1).
3
    18 Pa.C.S.A. § 2701(a)(1).
4
    18 Pa.C.S.A. § 2709(a)(1).



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408 (Pa. 2003). A trial court will reverse a jury's verdict and grant a new

trial only where the verdict is so contrary to the evidence as to shock one's

sense of justice. See Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa.

2008). Our appellate courts have repeatedly emphasized that “[o]ne 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.” Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super.

2005) (internal quotes omitted). An appellate court’s purpose in reviewing a

challenge to the weight of evidence “is to determine whether the trial court

abused its discretion and not to substitute [its own] judgment for that of the

trial court.   Commonwealth v. Murray, 597 A.2d 111, 114 (Pa. Super.

1991) (en banc) (citations omitted).

      Additionally, a claim that the verdict is contrary to the weight of

evidence is distinct from a claim pertaining to the sufficiency of the

evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). A

sufficiency of the evidence claim maintains that the evidence was inadequate

to prove each element of the crime charged beyond a reasonable doubt. Id.

A claim that the verdict is against the weight of the evidence acknowledges

that there was sufficient evidence to sustain the verdict, but questions the

evidence to be believed.   Commonwealth v. Lewis, 911 A.2d 558, 566

(Pa. Super. 2006) (quoting Commonwealth v. Hunzer, 868 A.2d 498, 507

(Pa. Super. 2005)).




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       Wright asserts that he fought Wallace in self-defense because Wallace

made a move toward him, which put him in fear of an attack. There was

conflicting testimony, however, because the Commonwealth presented

evidence that Wright was the aggressor and could not have reasonably

believed he was in danger of death or serious bodily injury. The jury, as fact

finder, was free to believe all, part, or none of the evidence and assess the

credibility of the witnesses. DeJesus, supra. Although Wright alleges that

the Commonwealth failed to disprove his self-defense claim, it is clear that

the jury trusted the Commonwealth’s description of events over Wright’s

version. The mere fact that the jury chose not to believe Wright does not

render the verdict against the weight of evidence.

       Wright also claims the Commonwealth failed to prove he attempted to

cause Wallace serious bodily injury.           This is a sufficiency challenge, rather

than a weight claim, because Wright alleges the Commonwealth failed to

prove all of the elements of aggravated assault.5                When evaluating a

sufficiency of the evidence challenge,

       we must determine whether, viewing the evidence in the light
       most favorable to the Commonwealth as verdict winner, together
       with all reasonable inferences therefrom, the trier of fact could
       have found that each and every element of the crimes charged
       was established beyond a reasonable doubt.

Commonwealth v. Little, 879 A.2d 293, 296-297 (Pa. Super. 2005).
____________________________________________


5
  In raising a weight of the evidence claim, Wright has conceded that the
evidence is sufficient to sustain the verdict. See Lewis, 911 A.2d at 566.



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      An individual is guilty of aggravated assault, where he:

      [A]ttempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly, or recklessly under
      circumstances manifesting an extreme indifference to the value
      of human life.

18 Pa.C.S.A. § 2702(a)(1).      Serious bodily injury is bodily injury that

“creates a substantial risk of death or which causes serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.”     18 Pa.C.S.A. § 2301.    Where the injury to the victim

does not constitute serious bodily injury, the charge of aggravated assault

can still be sustained if the evidence suggests the defendant intended to

cause serious bodily injury. See Commonwealth v. Dailey, 828 A.2d 356,

359 (Pa. Super. 2003); see also Commonwealth v. Alexander, 383 A.2d

887, 889 (Pa. 1978) (emphasis added).

      Wright claims the circumstances surrounding the incident do not

support a finding that he intended to cause Wallace serious bodily injury.

The Commonwealth, however, presented evidence that Wright repeatedly

punched Wallace in the face and upper body while he had him in a

chokehold. Wright was not provoked, and only stopped because his children

woke up.      Additionally, the evidence established that Wallace suffered

fracturing and hemorrhaging in both eye sockets, and Wallace testified that

his vision was impaired after the assault. Thus, the evidence was sufficient

to prove Wright attempted to inflict serious bodily injury on Wallace.




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      Finally, Wright argues the evidence establishes that he and Wallace

entered into a “mutual combat fight.”     Appellant’s Brief, at 12.   We note

that, the verdict slip shows that the jury did find the fight was entered into

by mutual agreement of the parties. However, evidence of mutual combat is

only relevant to simple assault, not aggravated assault, and is merely a

grading consideration. Commonwealth v. Norley, 55 A.3d 526, 530 (Pa.

Super. 2012); see also 18 Pa.C.S.A. § 2701(b).        As such, this claim is

meritless.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2017




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