J-S18013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONATHAN LOPEZ                             :
                                               :
                       Appellant               :   No. 525 MDA 2019

          Appeal from the Judgment of Sentence Entered March 7, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002371-2017


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                               FILED JUNE 23, 2020

        Jonathan Lopez appeals from the judgment of sentence following his

convictions for strangulation and simple assault1 claiming that the court

denied his Sixth Amendment right to confrontation by admitting hearsay

evidence and that the evidence was insufficient to sustain these convictions.

Upon review, we affirm.

        On March 15, 2017, Deborah Brown and Lopez, her boyfriend, got into

a fight; Brown called the police.          After the police arrived, Brown gave a

statement to the police, which stated:

        He sent text messages to me about [f---ing] me up when I came
        home. I came home and we argued. He fell asleep on the couch.
        I don't know what woke him up but I was beginning to enter the
        bathroom and I saw him coming behind me so I crouched down
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 2718(a)(1) and 18 Pa.C.S.A. § 2701(a)(1).
J-S18013-20


      because I didn't want to get hit in the face. As I was crouched he
      began choking me from behind. I couldn't breathe and I was
      shaky. I had my phone in my pocket and when he finally let up I
      struggled to dial 911 in between trying to fight him for the phone.
      I could barely dial because I was shaky and everything became
      fuzzy. I can't even describe properly how it felt when he finally let
      up. It's a feeling I had never felt before. He is referred to as
      Jonathan Lopez.

When Officer Rodney Zwigart arrived on the scene, he immediately noticed red

marks on Brown’s neck, which started to turn blue. Brown was visibly shaken

and upset. See Trial Court Opinion, 05/7/19, 2-3. Lopez was arrested and

charged.

      At Lopez’s jury trial, the Commonwealth introduced several phone calls

recorded between Lopez and Brown while Lopez was in jail. During one of

those calls, Brown told Lopez that she was subpoenaed to go to court. Lopez

told Brown that you “don’t even have to go though.” Lopez also told her “[s]o,

when you go you’re going to say that you lied?” Lopez also told Brown all she

had to do was put reasonable doubt in the minds of the jury, and he told her

how to testify. Notably, the Commonwealth introduced this evidence through

Officer Zwigart, who testified the day after Brown, when Brown was not in

court. Lopez objected to the admission of this evidence on the grounds that

it was hearsay and violated his Sixth Amendment right to confront the witness,

but the trial court overruled his objection.

      The jury convicted Lopez of strangulation and simple assault. The trial

court sentenced him to 24 to 48 months’ incarceration on the strangulation




                                      -2-
J-S18013-20



conviction and 12 to 24 months’ incarceration on the simple assault conviction,

to run concurrently. No post-sentence motion was filed.

      Lopez filed this timely appeal. The trial court and Lopez complied with

Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Lopez raises the following two issues:

       I.    Did the [trial court] abuse its discretion by failing to sustain
             Lopez’ objection to the admission of prison phone calls
             purportedly between the defendant and a Commonwealth
             witness, thus denying the defendant his Constitutional right
             to confront his accuser in violation of the Confrontation
             Clause of the Sixth Amendment to the United States
             Constitution?

       II.   The evidence presented at trial was insufficient for a jury
             to return verdicts of guilt on Count 1, Strangulation, and
             Count 2, Simple Assault.

Lopez’s Brief at 6.

      In his first issue, Lopez argues that the trial court erred in admitting the

prison telephone recordings between him and Brown over his objection that

they constituted hearsay and violated his Sixth Amendment right to

confrontation. Lopez’s Brief at 12-14. Because the Commonwealth introduced

the recordings through Officer Zwigart, who testified when Brown was not in

court, Lopez argues he was unable to cross-examine her regarding their

conversations. Id. at 11.

      An appellate court's standard of review of a trial court's evidentiary

rulings, which include rulings on the admission of hearsay, is abuse of

discretion. Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014) (citing



                                      -3-
J-S18013-20



Commonwealth v. Delbridge, 855 A.2d 27, 34 n.8 (Pa. 2003)). However,

whether a defendant has been denied his right to confront a witness under

the Confrontation Clause of the Sixth Amendment to the United States

Constitution is a question of law, for which our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Yohe, 79 A.3d 520,

530–31 (Pa. 2013) (citing Commonwealth v. Cannon, 22 A.3d 210 (Pa.

2011)).

      The Confrontation Clause of the Sixth Amendment, applicable to the

states through the due process clause of the Fourteenth Amendment, provides

that in “all criminal prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him.” Idaho v. Wright, 497 U.S. 805,

813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990) (citing U.S. CONST.

amend. VI). The right is a procedural one intended to ensure the reliability of

evidence     through   cross-examination.    Yohe,    79   A.3d   at   530-31;

Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super. 2009). Where the

declarant is unavailable for trial, the introduction of hearsay evidence may

violate a defendant’s right under the Confrontation Clause.       Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding

that testimonial, out-of-court statements of an unavailable witness cannot be

used as evidence against a defendant if the defendant had no prior opportunity

to cross-examine the witness, notwithstanding an exception to the hearsay

doctrine).




                                     -4-
J-S18013-20



      We conclude, contrary to Lopez’s argument, that the circumstances at

his trial did not present a Confrontation Clause concern. First, we note that

Lopez’s accuser was available for trial.         Undisputedly, the recorded

conversations at issue here were between Lopez and Brown.           Brown was

present at trial and testified. Although Brown testified before the introduction

of the recordings through Officer Zwigart the next day, Brown had been

subpoenaed for trial and was available for examination.            Lopez even

acknowledged that he could have examined her.             Lopez Brief at 14.

Nonetheless, he chose not to question her about the recordings.

      The Confrontation Clause does not apply where the out-of-court

declarant is available for cross-examination in court.    Commonwealth v.

Barnett, 50 A.3d 176, 189 n.6 (Pa. Super. 2012).          Because Brown, the

declarant in question, was available for cross-examination at trial, Lopez’s

alleged Confrontation Clause claim fails.

      Moreover, the statements at issue here were not testimonial in nature

and therefore did not trigger Confrontation Clause concerns. “[T]hey were

not made under circumstances which would “lead an objective witness

reasonably to believe that the statements would be available for use at a later

trial[.]” Crawford, 541 U.S. at 52, 124 S.Ct. 1354. Also, the primary purpose

of the conversations was not “to establish or prove past events potentially

relevant to later criminal prosecutions.” Commonwealth v. Abrue, 11 A.3d

484, 492 (Pa. Super. 2010). Instead, the statements at issue here arose out

of casual conversations between Lopez and Brown. Such “‘out-of-court non-

                                     -5-
J-S18013-20



testimonial statements . . . are subject only to a state's hearsay rules and are

exempted . . . from Confrontation Clause scrutiny.’”        Id. at 488 (quoting

Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. 1354)).2

       In his second issue, Lopez challenges the sufficiency of evidence to

sustain his two convictions.         When analyzing whether the evidence was

sufficient to support a conviction, this Court must “view the evidence in the

light most favorable to the Commonwealth as the verdict winner in order to

determine whether the jury could have found every element of the crime

beyond a reasonable doubt.” Commonwealth v. Thomas, 215 A.3d 36, 40

(Pa. 2019).      “The evidence established at trial need not preclude every

possibility of innocence and the fact-finder is free to believe all, part, or none

of the evidence presented.” Commonwealth v. Brown, 52 A.3d 320, 323

(Pa. Super. 2012). “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

circumstances.” Commonwealth v. Vargas, 108 A.3d 858, 867 (Pa. Super.

2014) (en banc). Additionally, this Court cannot “re-weigh the evidence and

substitute our judgment for that of the fact-finder.” Id. A challenge to the

sufficiency of the evidence presents a pure question of law and, as such, our
____________________________________________


2 In his statement of issues, Lopez does not challenge the admissibility of
these statements as hearsay. Such challenge would have failed in any event.
First, as the trial court concluded, the statements were not hearsay because
they were not offered for the truth. Second, even if offered for the truth, the
statements fell within an exception to the hearsay rule because they were
statements of a party opponent. Pa.R.Evid. 803(25).

                                           -6-
J-S18013-20



standard of review is de novo and our scope of review is plenary.

Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017).

      Lopez first argues that the evidence was insufficient to sustain his

conviction   for   strangulation.    Specifically,   Lopez   contends   that   the

Commonwealth failed to show that he actually strangled Brown; during trial,

Brown never testified that Lopez strangled her. Instead, Brown testified she

did not remember what happened that day, was intoxicated at the time, had

been angry at Lopez over a prior incident between them, and did not have any

injuries. Lopez’ Brief at 16.

      To convict Lopez of strangulation, the Commonwealth had to prove that

he, “knowingly or intentionally impeded the breathing or circulation of the

blood of another person by either (1) applying pressure to the throat or neck;

or (2) blocking the nose and mouth of the person.” 18 Pa.C.S.A. § 2718(a).

Notably, “[i]nfliction of a physical injury to a victim shall not be an element of

the offense. The lack of physical injury to a victim shall not be a defense in a

prosecution” of this offense. 18 Pa.C.S.A. § 2718(b).

      Based upon our review of the record, we conclude that the

Commonwealth presented sufficient evidence to demonstrate that Lopez

strangled Brown. The trial court aptly summarized this evidence:

      In the matter at hand, there was evidence presented to show that
      the Defendant knowingly or intentionally impeded the breathing
      of the victim by applying pressure. Despite being a hostile witness,
      through the victim, the Commonwealth introduced a statement
      that the victim wrote immediately after the attack. Here, the
      victim stated that the Defendant “began choking me from behind"
      and that she "couldn't breath[e] and was shaky.” The victim

                                      -7-
J-S18013-20


      further indicated that everything became fuzzy and that it was a
      feeling that she never had before. The Commonwealth also
      introduced photographs of the injury the victim sustained. These
      photographs show[ed] redness around [Brown’s] neck and throat
      area. Finally, Officer Zwigart testified that he could see red marks
      on the victim's neck and that they started to turn blue.

Trial Court Opinion, 5/7/19, at 6-7. Although Brown did not remember what

transpired that day and therefore did not testify at trial that Lopez strangled

her, the trial court observed that the transcripts from the phone calls showed

that Brown intended to feign a lack of memory as a result of Lopez’s coaxing.

Trial Court Opinion, 5/7/19, at 7. Furthermore, as the trial court observed,

this statute specifically provides that the Commonwealth need not show that

Brown sustained any injury and that lack of a physical injury is not a defense.

Id.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to sustain Lopez’s conviction for strangulation.

      Finally, Lopez argues that the evidence was insufficient to sustain his

conviction for simple assault. Again, Lopez contends that Brown did not testify

at trial that he strangled her. Lopez’s Brief at 17.

      To convict Lopez of simple assault, the Commonwealth had to prove that

he attempted to cause or intentionally, knowingly or recklessly caused bodily

injury to another. 18 Pa.C.S.A. § 2701(a)(1).

      For the reasons discussed above, we similarly conclude that the

Commonwealth presented sufficient evidence to prove that Lopez assaulted


                                      -8-
J-S18013-20



Brown. The evidence showed that after the incident, Brown reported to police

that Lopez put his hands around her throat. Brown had red marks on her

neck, which started to turn blue.     It is clear that Lopez’s actions caused

bruising on Brown’s neck. This evidence was sufficient to establish that Lopez

intentionally, knowingly or recklessly caused bodily injury to another.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the Commonwealth presented

sufficient evidence to sustain Lopez’ conviction for simple assault.

      Based upon the foregoing, Lopez’ sufficiency claims fail.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/23/2020




                                     -9-
J-S18013-20




              - 10 -
