J-S35016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MICHAEL MARION,

                         Appellant                   No. 495 EDA 2015


    Appeal from the Judgment of Sentence Entered September 12, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0014384-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 20, 2016

      Appellant, Michael Marion, appeals from the judgment of sentence of

an aggregate term of 5 years’ probation, imposed after he was convicted of

aggravated assault (18 Pa.C.S. § 2702(a)), simple assault (18 Pa.C.S. §

2701(a)), and recklessly endangering another person (REAP) (18 Pa.C.S. §

2705). Appellant challenges the admissibility of evidence, the sufficiency of

the evidence to sustain his convictions, and alleges the verdict is against the

weight of the evidence. We affirm.

      The facts of this case were summarized by the trial court in its

Pa.R.A.P. 1925(a) opinion, as follows:

             This case is the result of a domestic dispute between
      [Appellant] and his girlfriend, [Katy Borowick (“Ms. Borowick”)].
      Testifying for the Commonwealth were Officers Vincent Strain
      (“Officer Strain”) and Anthony Comitalo (“Officer Comitalo”) and
      Detective Vincent Rimshaw (“Detective Rimshaw”) all from the
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     Philadelphia Police Department. Additionally, [Ms. Borowick]
     was called to testify. [Appellant] testified on his own behalf.

            On November 1, 2013, Officer Stain [sic] and Officer
     Comitalo were on routine patrol, in plain clothes and in an
     unmarked police vehicle, traveling on North Penn Street in
     Philadelphia.     Officer Strain was the passenger and Officer
     Comitalo was driving. At approximately 11:30 p.m., Officer
     Strain observed a struggle between two people on a second floor
     balcony on North Tenth Street. Officer Strain told his partner to
     stop the vehicle. Officer Strain exited the vehicle and observed
     [Appellant] throwing Ms. Borowick into an outdoor grill. Officer
     Strain testified that [Appellant] was on his knees, straddling [Ms.
     Borowick], with both hands around her neck. Officer Strain
     testified that he could hear [Ms. Borowick] grunting. Officer
     Strain identified himself as a police officer and yelled for
     [Appellant] to stop choking [Ms. Borowick].              [Appellant]
     responded that they were having a “traditional fight.” Officer
     Strain testified that he continued telling [Appellant] to stop but
     [Appellant] continued to choke [Ms. Borowick] for ten to fifteen
     seconds. Officer Strain further testified that although it was dark
     he was able to see because the balcony was well illuminated by
     streetlight, balcony light and light from inside the apartment.

           Officer Comitalo testified that he gained access to [Ms.
     Borowick’s] apartment while Officer Strain attempted to get
     [Appellant’s] attention. Officer Comitalo entered the building
     and went up the stairs; [Appellant’s] and [Ms. Borowick’s]
     children opened the door. [Appellant] was still choking [Ms.
     Borowick] and Officer Comitalo observed [Appellant] let [Ms.
     Borowick] up off the floor. The officers separated [Appellant]
     and [Ms. Borowick]. [Ms. Borowick] was visibly shaken, had red
     marks and hand prints around her neck, and was unable to
     speak for five minutes. When Ms. Borowick was able to speak,
     her voice was raspy. [Appellant] was taken into custody.

           Detective Rimshaw testified that at approximately 12:50
     a.m. he interviewed Ms. Borowick by telephone.       Detective
     Rimshaw testified that [Ms. Borowick] was unable to leave her
     apartment because she had four young children at home so the
     interview was conducted by phone.

           [Ms. Borowick] testified that she and [Appellant] were
     cooking together; that she was on medication for mental health
     and for back pain, which caused her to be unsteady on [her]


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      feet; that she drank one beer; that she went out to the balcony
      to get some fresh air; that she stumbled into an outdoor grill;
      that the police witnessed [Appellant] trying to help her get up
      from the floor; and that police kicked in her apartment door to
      gain access.    [Appellant] also denied the incident and his
      testimony corroborated [Ms. Borowick’s].

Trial Court Opinion (TCO), 7/27/15, at 2-4 (citations to record omitted).

      After a non-jury trial, which was held on June 20, 2014, Appellant was

found guilty of the above-stated charges.      The trial court subsequently

granted Appellant’s motion for extraordinary relief and reduced the charge of

aggravated assault from a first degree felony to a felony of the second

degree. On September 12, 2014, the court sentenced Appellant to 5 years’

probation.   Appellant filed a timely notice of appeal followed by a timely

court-ordered Rule 1925(b) statement.

      Appellant now presents the following issues for our review:

      1. An unsigned witness statement taken over the phone was
         improperly authenticated and admitted into evidence, which
         may have changed the verdict.

      2. There was no [possessing an instrument of crime] charge or
         deadly weapon used whatsoever. Therefore[,] the remaining
         [aggravated assault] charge cannot stand.

      3. The evidence was insufficient to conclude guilt beyond a
         reasonable doubt on the charges as a whole.

      4. Furthermore, the verdict was against the weight of the
         evidence because two witnesses testified, including the
         complaining witness [Ms. Borowick], and gave a different
         story. [Ms. Borowick] and [Appellant] both had a better
         vantage point and testified credibly.

Appellant’s Brief at 5.




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     First, we address Appellant’s claim regarding the admissibility of the

unsigned statement taken over the phone. We have previously stated:

     The standard of review governing evidentiary issues is settled.
     The decision to admit or exclude evidence is committed to the
     trial court’s sound discretion, and evidentiary rulings will only be
     reversed upon a showing that a court abused that discretion. A
     finding of abuse of discretion may not be made “merely because
     an appellate court might have reached a difference 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.”

Commonwealth v. Koch, 106 A.3d 705, 710-711 (Pa. 2014) (quoting

Commonwealth v. Laird, 988 A.2d 618, 636 (Pa. 2010)). Appellant avers

that the trial court “improperly let in a statement alleged [sic] made by [Ms.

Borowick] to [the p]olice during a phone interview.” Appellant’s Brief at 8.

He argues that the statement was unauthenticated, because it was unsigned

and contradicts testimony given at trial by Ms. Borowick. Id.

     Pennsylvania    Rules   of   Evidence   provide   that   “[t]o   satisfy   the

requirement of authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a finding that the

item is what the proponent claims it is.” Pa.R.E. 901(a). Evidence regarding

a telephone conversation may be authenticated by “evidence that a call was

made to the number assigned at the time to … a particular person, if

circumstances, including self-identification, show that the person answering

was the one called.”   Pa.R.E. 901(b)(6).    “[T]he ultimate determination of

authentication is for the [factfinder]. A proponent of a document need only

present a prima facie case of some evidence of genuineness in order to put

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the issue of authenticity before the factfinder[].”        Commonwealth v.

Brooks, 508 A.2d 316, 320 (Pa. Super. 1986) (emphasis in original).

Moreover, we note:

     It is well established that our Court will not reverse a trial court’s
     credibility determination absent the court’s abuse of discretion as
     fact finder. In a bench trial, as in a jury trial, the trier of fact
     while passing upon the credibility of witnesses … is free to
     believe all, part or none of the evidence.

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006).

     Here, the trial court provided the following well-reasoned explanation

of its decision to allow Ms. Borowick’s telephone statement into evidence:

     [Ms. Borowick’s] telephone statement to Detective Rimshaw was
     authenticated by [Ms. Borowick] and Detective Rimshaw and was
     properly admitted at trial. At trial, [Ms. Borowick] testified: “I
     did get a phone call from the detective just because I didn’t want
     to haul my kids up to the 35th District at whatever late hour of
     the night.” On November 2, 2015 at 12:50 a.m., Detective
     Rimshaw asked [Ms. Borowick] the following six questions:

        Q1. Can you tell me what happened at approx. 11:30PM
        on 11-01-13 at 6009 N. 0th [sic] St. Apt. 2?

        A1. I was involved in an argument with [Appellant], Mike
        Marion, my boyfriend on the balcony of our apartment at
        6009 N. 10th St. [Appellant] became angry and knocked
        me down and was choking me. The police arrived and
        arrested [Appellant].

        Q2. How long have you known [Appellant]?

        A2. About 7 years.

        Q3. Have you had any altercations with [Appellant] in the
        past?

        A3. No, but we argue sometimes.

        Q4. What are your injuries?


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         A4. I have some swelling on my neck.

         Q5. Did you require hospital treatment?

         A5. No.

         Q6. Is there anything else?

         A6. No.

      [Ms. Borowick] testified to remembering four of the questions
      asked during the interview by phone. [Ms. Borowick’s] memory
      was selective about the phone interview with Detective
      Rimshaw. First, [she] was able to recall being asked questions
      two and five and corrobated her answers to these questions.
      Second, [Ms. Borowick] could not recall questions three and six.
      Finally, [Ms. Borowick] recalled questions one and four, but
      testified that she did not recall giving the answers on the
      statement. On the stand, [Ms. Borowick] “could not recall” any
      answer that either incriminated [Appellant] or emphasized their
      relationship problems.    [Appellant’s] statement was further
      authenticated by Detective Rimshaw when he identified Exhibit
      C-3 as “…the interview I did over the phone with [Ms.
      Borowick].” Detective Rimshaw testified that he obtained [Ms.
      Borowick’s] biographical information and phone number from
      Officers Strain and Comitalo and that the interview was
      conducted by phone because [Ms. Borowick] could not leave her
      children.

TCO at 5-6 (internal citations to record omitted). After careful review, we

conclude that the authenticity and, thus, the admissibility of Ms. Borowick’s

telephone statement is well-supported by the record. We discern no abuse

of discretion by the trial court.

      Next, Appellant argues that his conviction of aggravated assault as a

felony of the second degree is not supported by the evidence. Our standard

of review of a challenge to the sufficiency of the evidence is well-settled:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light


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     most favorable to the verdict winner, are sufficient to support all
     elements of the offense. Commonwealth v. Moreno, 14 A.3d
     133 (Pa. Super. 2011). Additionally, we may not reweigh the
     evidence or substitute our own judgment for that of the fact
     finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
     2009). The evidence may be entirely circumstantial as long as it
     links the accused to the crime beyond a reasonable doubt.
     Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

     Here, Appellant avers that he was found guilty of aggravated assault

as a felony of the second degree and that the evidence fails to support “a

conviction for aggravated assault, under any [of] the sections of the statute

which are graded as a felony of the second degree.” Appellant’s Brief at 9.

To the contrary, we emphasize that Appellant was originally convicted of

aggravated assault as a felony of the first degree under 18 Pa.C.S. §

2702(a)(1).

     Under the Crimes Code, a person may be convicted of
     aggravated assault, graded as a felony of the first degree, if
     he/she “attempts to cause serious bodily injury to another, or
     causes such injury intentionally, knowingly or recklessly under
     circumstances manifesting extreme indifference to the value of
     human life.” 18 Pa.C.S.A. § 2702(a)(1). Further, the Code
     defines “serious bodily injury” as “bodily injury which 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. For
     aggravated assault purposes, an ‘attempt’ is found where the
     accused, with the required specific intent, acts in a manner
     which constitutes a substantial step toward perpetrating a
     serious bodily injury upon another. A person acts intentionally
     with respect to a material element of an offense when … it is his
     conscious object to engage in conduct of that nature or to cause
     such a result. As intent is a subjective frame of mind, it is of
     necessity difficult [to prove with direct evidence]. Accordingly,
     we recognize that intent can be proven by direct or


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       circumstantial evidence; it may be inferred from acts or conduct
       or from the attendant circumstances.

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super. 2005)

(internal quotation marks and citations omitted).

       Clearly, Appellant’s act of choking Ms. Borowick for ten to fifteen

seconds, causing redness, hand prints, swelling, and rendering Ms. Borowick

unable to speak for five minutes demonstrates that Appellant attempted to

cause her serious bodily injury to support a conviction of aggravated assault

under 18 Pa.C.S. § 2702(a)(1).                 See generally Commonwealth v.

Russell, 460 A.2d 316 (Pa. Super. 1983) (indicating that choking the victim,

among other circumstances, demonstrated an attempt to inflict serious

bodily injury).1     Choking Ms. Borowick with such force as that used by

Appellant inherently risked cutting off Ms. Borowick’s ability to breathe.

Common sense dictates that a person who cannot breathe will die within a

relatively short period of time.        Thus, the evidence proved that Appellant

committed aggravated assault under section 2702(a)(1).

       After his conviction under that section, Appellant petitioned the court

to reduce that conviction to a felony of the second degree.           The court

granted Appellant the relief he sought, which ultimately resulted in a lesser
____________________________________________


1
   We are aware that there were circumstances in Russell, other than
choking, which also gave rise to the risk of serious bodily injury in that case
(specifically, the victim had been threatened with rape). However, we have
no doubt whatsoever that choking a victim, coupled with evidence that the
victim’s breathing was actually impeded, without more, constitutes a risk of
serious bodily injury.



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sentence.     Now, on appeal, Appellant seeks a complete windfall by

attempting to argue that the evidence was insufficient to support his

conviction for aggravated assault “as a felony of the second degree.”

Appellant’s Brief at 10. Based on our conclusion that the evidence supported

the offense of which Appellant was actually convicted, i.e., aggravated

assault under section 2702(a)(1), Appellant’s argument is completely

without merit.

      Appellant’s third issue challenges the sufficiency of the evidence

regarding all of his convictions.     As we have already addressed the

sufficiency of evidence regarding Appellant’s aggravated assault charge

herein, we will proceed with a sufficiency analysis regarding the remaining

charges of simple assault and REAP. However, before we may address this

issue, we are compelled to note that Appellant failed to properly preserve his

general sufficiency claim, due to a lack of specificity in his Rule 1925(b)

statement. We have previously stated:

      [W]hen challenging the sufficiency of the evidence on appeal, …
      Appellant’s 1925 statement must “specify the element or
      elements upon which the evidence was insufficient” in order to
      preserve the issue for appeal. Such specificity is of particular
      importance in cases where … Appellant was convicted of multiple
      crimes[,] each of which contains numerous elements that the
      Commonwealth must prove beyond a reasonable doubt.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (quoting

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008))

(citations omitted).



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      Appellant’s Rule 1925(b) statement contains the following challenge to

the sufficiency of the evidence: “The evidence was insufficient to conclude

guilt beyond a reasonable doubt on the charges as a whole.”         Appellant’s

Pa.R.A.P. 1925(b) Statement, 2/27/15, at 2 (unpaginated).        Based on our

reasoning in Williams, which was reiterated in Gibbs, we are compelled to

conclude that Appellant’s Rule 1925(b) statement is inadequate to preserve

his sufficiency claims.   Appellant was convicted of multiple offenses, each

with multiple elements, yet his Rule 1925(b) statement does not specify

which element(s) of his convictions the Commonwealth failed to prove.

Instead, Appellant merely states, in boilerplate fashion, that “[t]he evidence

was insufficient” to support a conviction for any of the above-stated charges.

Id. Based on the foregoing, we conclude that Appellant’s sufficiency claims

are waived.

      Nevertheless, even if Appellant had properly preserved his sufficiency

claims, we would conclude that this issue is without merit.         Appellant’s

sufficiency claims regarding his simple assault and REAP charges rest solely

on Ms. Borowick’s testimony “that she fell on the balcony, Appellant tried to

help her up, at which point the police arrived…” and his assertion that the

police had a compromised view of the incident.        Appellant’s Brief at 15.

However, the trial court found the testimony of Officers Strain and Comitalo

to be credible, as evidenced by the following portion of its opinion:

      Here, the elements of assault and REAP were established with
      credible testimony that [Appellant] threw [Ms. Borowick] into an
      outdoor grill and then proceeded to choke her with both hands.

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      Further, [Appellant’s] actions demonstrate that his conduct
      placed [Ms. Borowick] in danger of serious bodily injury when he
      continued to choke [Ms. Borowick] for a period of ten to fifteen
      seconds even after an identified police officer ordered him to
      stop.

TCO at 10.

      The offense of REAP is defined as follows:       “A person commits a

misdemeanor of the second degree if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.” 18 Pa.C.S. § 2705.

      It is well settled that REAP is a lesser included offense of
      aggravated assault[:]

         Once the prosecution has proved that an individual caused
         or attempted to cause serious bodily injury under
         circumstances manifesting an extreme indifference to
         human life, it also has established that the same person
         recklessly engaged in conduct that placed or may have
         placed another person in danger of death or serious bodily
         injury.   Every element of reckless endangerment is
         subsumed in the elements of aggravated assault.

Commonwealth v. McCalman, 795 A.2d 412, 417 (Pa. Super. 2002)

(quoting Commonwealth v. Dobbs, 682 A.2d 388, 391 (Pa. Super. 1996))

(emphasis in original omitted).        Similarly, we have acknowledged that

“[n]umerous cases state that simple assault is a lesser included offense of

aggravated assault” and REAP. Commonwealth v. Ferrari, 593 A.2d 846,

849 (Pa. Super. 1991); Commonwealth v. Brunson, 938 A.2d 1057,

1061-62 (Pa. Super. 2007) (concluding “simple assault is a lesser included

offense of [REAP] since the elements of simple assault are necessarily

included in the offense of [REAP]”).


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      If each and every element of one offense is necessarily an
      element of a greater offense, the former offense is a lesser
      included offense of the latter. In order for one offense to be
      considered a lesser included offense of another, therefore, the
      commission of the greater offense must necessarily involve the
      commission of the lesser.

Ferrari, 593 A.2d at 848 (internal citations omitted).    Accordingly, having

already determined that the evidence was sufficient to sustain a conviction

of aggravated assault, we also conclude the evidence supports Appellant’s

convictions of REAP and simple assault.

      Lastly, Appellant challenges the weight of the evidence to support his

convictions.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury’s verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant bases his weight of the evidence claim solely on his assertion

that the police had a compromised view of the events on the evening in

question and that Ms. Borowick’s version of the events should have been

accepted by the court.    Appellant’s Brief at 16.   However, the trial court


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considered all of the testimony presented at trial and found the testimony of

Officers Strain and Comitalo and Detective Rimshaw to be credible. TCO at

11. “[O]n issues of credibility and weight of the evidence, an appellate court

defers to the findings of the trial judge, who has had the opportunity to

observe the proceedings and demeanor of the witnesses.” Commonwealth

v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002). The trial court, as

fact finder, concluded that the elements of aggravated assault, simple

assault, and REAP were proven beyond a reasonable doubt, and that

Appellant committed these offenses. TCO at 11. We ascertain no abuse of

discretion in the trial court’s denial of Appellant’s challenge to the weight of

the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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