J-S58012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RUSSELL WEATHERS,

                            Appellant                   No. 940 MDA 2015


             Appeal from the Judgment of Sentence March 20, 2015
               in the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0005545-2013


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED AUGUST 22, 2016

        Appellant, Russell Weathers, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas following his jury

conviction of two counts of aggravated assault,1 and one count of simple

assault.2    He challenges the sufficiency of the evidence for aggravated

assault and the admission of evidence of other assaults. We affirm on the

basis of the trial court opinion.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a)(1).
2
    18 Pa.C.S.A. § 2701(a)(1).
J-S58012-16


restate them at length here.     For the convenience of the reader we note

briefly that Appellant’s convictions arose out of a physical attack on his then

live-in girlfriend, in which he banged her head against a taxicab and threw

her headlong on to the sidewalk. Her nose was fractured in three places. A

passerby saw the assault and called 911.            Nevertheless, the victim, still

financially dependent on Appellant, was indecisive about whether to continue

or end the relationship.    For a while, the victim denied Appellant was her

assailant.   She blamed an unknown stranger.            In the end she identified

Appellant.

      At trial, the court permitted the Commonwealth to introduce evidence

of a prior 911 call announcing the caller intended to kill the victim. The call

was placed from the telephone in the home the victim shared with Appellant,

and the victim identified his voice as that of the caller. The jury convicted

Appellant of all charges.

      Appellant raises the following two questions for our review:

            1. Whether the evidence presented at trial of this matter
      was legally insufficient to show the victim suffered a serious
      bodily injury, as contemplated by the Aggravated Assault
      statute[?]

           2. Whether the Honorable Trial Court erred by permitting
      the Commonwealth to introduce evidence pursuant to Pa.R.Evid.
      404(b) of other assaults purportedly made by [Appellant] on the
      same victim at trial of this matter[?]

(Appellant’s Brief, at 8) (emphasis in original).




                                      -2-
J-S58012-16


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to the issues Appellant has raised on appeal. The trial

court opinion properly disposes of the questions presented. (See Trial Court

Opinion, 11/23/15, at 17-24) (concluding that: (1) viewing evidence in light

most favorable to Commonwealth as verdict winner, there was more than

sufficient evidence for jury to infer that Appellant intended to inflict serious

bodily injury and that victim suffered serious bodily injury; and (2) trial

court properly exercised its discretion in admitting evidence of Appellant’s

prior assaults against victim to establish intent, motive, and to show

complete chain of events leading up to crime.). Accordingly, we affirm on

the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2016




                                          -3-
                                                                            Circulated 08/06/2016 01:51 PM




    COMMONWEALTH            OF PENNSYLVANIA        IN THE COURT OF COMMON PLEAS
                                                   DAUPHIN COUNTY, PENNSYLVANIA

                            v.                     DOCKET NO.: 5545 CR 2013

    RUSSELL WEATHERS                             : (940 MDA 2015)



                                   MEMORANDUM OPINION


           Appellant, Russell Weathers ("Appellant" or "Weathers") is appealing this Court's

    judgment of sentence entered March 20, 2015. This opinion is written pursuant to

    Pa.R.A.P. 1925(a).


                                   PROCEDURAL HISTORY


           Appellant, Russell Weathers was charged with two counts of Aggravated Assault

- Intent to Cause Serious Bodily Injury ("SBI")1 and Attempt to Cause SBl,2 and one

    count of Simple Assault.3 The Commonwealth proceeded on alternate theories at trial

alleging that Appellant actually did cause serious bodily injury to the victim and/or that

Appellant attempted to cause serious bodily injury to the victim. (Notes of Testimony at

4 ).4 A jury trial was held on February 9-11, 2015, at the conclusion of which he was

found guilty of all charges.


          As a result of his convictions, on March 20, 2015, Mr. Weathers was sentenced

at Count One to a period of incarceration of not less than 108 months nor more than

240 months, a fine of $2500, and the payment of the costs of prosecution. Counts Two

and Three merged for purposes of sentencing and it was ordered that Weathers is
1
    18 Pa.C.S. § 2702(a)(1).
2
    18 Pa.C.S. § 2702(a)(1 ).
3
    18 Pa.C.S. § 2701 (a)(1).
4
    Hereinafter "N.T."
 prohibited from any contact in any manner with the victim. Appropriate time credit was

 applied.


          At the conclusion of trial, Mr. Weather's attorney, Jason Duncan, Esquire, was

relieved of his duties as counsel in accordance with Weathers' request. No post-

sentence motion was filed in this matter. A prose Notice of Appeal to the Pennsylvania

Superior Court was filed on April 1, 2015. After the appeal was filed, Mr. Weathers filed

prose correspondence on May 14, 2015, stating that he wished to keep Attorney

Duncan as his counsel to file an appeal. By way of letter, this Court informed Appellant

that, as he had already filed a Notice of Appeal, we were without jurisdiction to entertain

his request and that he would have to apply to the Superior Court for any request for

relief.


          Mr. Weathers filed an Application for Appointment of Counsel with the Superior

Court on June 24, 2015. Accordingly, the Superior Court directed this Court to conduct

a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988) to determine

whether Defendant wished to proceed with Jason B. Duncan, Esquire, prose, or to

apply for appointment of counsel. The hearing was held on July 20, 2015, during which

Mr. Weathers expressed his wish for new appointed counsel.       By order date July 22,

2015, this Court appointed Michael 0. Palermo, Esquire to represent Appellant for

purposes of his direct appeal.


          On August 31, 2015, Appellant applied to Superior Court for remand of the

record for the purpose of filing a Concise Statement of Matters Complained of on

Appeal pursuant to Pa.R.A.P. 1925(b).     Appellant's application was granted and by



                                              2
order dated October 1, 2015, the record was remanded to the trial court for the filing of

a 1925(b) statement within twenty-one (21) days of the date of the Order.      In

accordance with the October 1, 2015 order, Superior Court retained jurisdiction and

directed the trial court to file a supplemental 1925(a) opinion within thirty (30) days of

Appellant's filing of his 1925(b) statement. The 1925(b) statement was filed on October

22, 2015.


       On appeal Appellant raises the following issues for review:


                1. The Honorable Trial Court erred by permitting the
       Commonwealth to introduce evidence pursuant to Pa.R.Evid. 404(b) of
       other assaults purportedly made by the Defendant on the same victim at
       trial of this matter.

               2. The evidence presented at trial of this matter was legally
       insufficient to show the victim suffered a serious bodily injury, as
       contemplated by the Aggravated Assault statute. (Emphasis in original).
       The following opinion is this Court's supplemental trial court opinion submitted in

compliance with the Superior Court's August 31, 2015 order.


                               FACTUAL BACKGROUND

       This case stems from an August 1, 2013 physical assault on Abigail Shaw ("Ms.

Shaw") in front of her apartment building located at 314 S. 2nd Street, Harrisburg

Pennsylvania. Ms. Shaw and Mr. Weathers had become involved in a romantic

relationship beginning in August 2012. (N.T.at 22-23). As the relationship progressed,

around November 2012, the two moved in together at the South 2nd Street apartment

along with Ms. Shaw's three children. (N.T. at 24-25).




                                             3
              Ms. Shaw testified at trial to her version of the relationship with Mr. Weathers and

the events of August 1, 2013.         Ms. Shaw described her relationship with Mr. Weathers

as initially good until the end of November 2012, when she encountered her first bout of

violence with him. (N.T. at 25-26). She stated that during the first incident, Weathers

grabbed her by the neck and threw her around. (N.T. at 26).           Despite Ms. Shaw's view

that the relationship was good as they "didn't really have too many arguments,"

Weathers was violent again in December 2012. (N.T. at 26-27).            Again, he picked up

Shaw by her neck, smacked her head against a window and off the floor. (N.T. at 27).

In addition to harming Shaw, after the December incident he smashed the television

with a hammer because she tried to laugh off the assault and ignore him in an attempt
     .   ..       -

to signal that she was not scared of him. (N.T. at 27-28). Because of his anger about

Shaw's behavior, he also got a knife, grabbed her by the neck again and called his

cousin to say he was going to kill her. (N.T. at 28). While blocking the knife with her

arm, she was cut. (N.T. at 28-29). She explained that most of the violent encounters

stemmed from his inability to cope with the death of his mother and money issues

connected with his mother's estate and family. (N.T. at 26-27; 31-32).


              The violent and controlling behavior by Weathers escalated during 2013. Ms.

Shaw testified that Appellant monitored her cellphone, restricted her from seeing

friends, did not permit her to have a car and would appear at her workplace and school

to check on her whereabouts. (N.T. at 29-32). The constant presence at her workplace

caused her to quit her job. (N.T. at 31 ). Additionally, co-workers at a bar where she had

been employed noticed fingerprint bruises on her neck and arms and lumps on her

head. (N.T. at 111 ). Weathers was not permitted in the bar when she was working. (ls;!.)


                                                  4
        According to Ms. Shaw, the assaults became daily occurrences beginning in April

 2013. (N.T. at 32). On one occasion, when Weathers asked if she wanted to leave and

 she answered yes, he proceeded to throw her down the steps. (N.T. at 30). Another

 beating occurred when Shaw permitted her youngest son's father to visit while she and

Weathers were not home. (N.T. at 33-34). On another occasion, Ms. Shaw attempted

to leave and even had her children packed in the car, but Weathers arrived home before

she left. She stated that she went back inside the apartment so he would not cause a

scene. Despite her return to the apartment, he hit her and told her she wasn't allowed

to leave. (N.T. at 34-35). When asked why she had not called the police on any of

these occasions, Shaw responded that she no longer had her circle of friends and her

relationship with her mother was not close thus, she had no support system or any

place to go. (N.T. at 34).


       On December 8, 2012, at approximately 3:46 a.m. a call was made to 911 by a

male who said he was going to kill Ms. Shaw. (N.T. 37). A police officer was dispatched

to the South 2nd Street location to investigate the call. (N.T. at 36-37).   Ms. Shaw

informed the officer that she did not know about the call and let him look through the

house to verify everyone was safe. (N.T. at 36-37). When the recording of the 911 call

was played for the jury, Shaw identified the voice as Appellant's and based on the

phone number, verified that it had been placed from the house phone. (N.T. at 37-38;

114). When she confronted Weathers about the call she was hit by him. (N.T. at 39).

On two more occasions, a similar call was made to 911 prompting additional police

visits to the home. (N.T. at 39-40).




                                              5
        The incident that gave rise to the charges in this matter occurred in the early

 morning hours of August 1, 2013. (N.T. at 40).    Ms. Shaw had returned from her classes

for the day where she found Mr. Weathers listening to music on his iPad.      She stated

that around 7:00 p.m.     he had gotten emotional while listening to music that he used to

enjoy with his deceased mother so, he stormed out of the house saying he was going to

buy cigarettes. (N.T. at 40-41).


        Later, around 9:00 p.m., Ms. Shaw took her children to the grocery store but

when she returned, she realized that she had locked herself out of the apartment. (N.T.

at 41 ). She placed a note on the front door stating the she was locked out and

attempted to find a place to stay in the meantime. After being unsuccessful at finding a

friend who was home, Shaw returned to the apartment to wait in the car for Weathers to

return. (N.T..at41-44).    She later awoke to a cab pulling in behind her parked car with

Mr. Weathers in the front passenger seat. Shaw explained that she knew it was

Weathers because they used cabs regularly and, since he and the cab driver were

friends, he would ride in the passenger seat. (N.T. at 45). Ms. Shaw approached the

passenger door saying she had been locked out when Weathers' arm came out of the

open window and, as he said "bitch, you're playing me," he smacked her head off the

front hood of the vehicle. (N.T. at 45-47). Weathers then got out of the car, grabbed

Shaw by the neck and slammed her to the ground while her 8 year old son was

watching. (N.T. at 47). As she was on her back, he smacked her head against the

street and punched her in the face while repeatedly calling her a bitch. (N.T. at 48). Ms.

Shaw remembers Appellant leaving in the cab and then driving to Harrisburg Hospital.

(N.T at 48).


                                              6
       On that same night, Mark Cicak ("Mr. Cicak") was returning home from his

employment from UPS in Harrisburg. (N.T. at 177-178). He had worked the night shift

which usually ended between 2:00 a.m. and 4:00 a.m. (N.T. at 178-179).         While driving

in the far left lane on South   2nd   Street around 3:00 a.m., Mr. Cicak saw a couple on the

sidewalk to his left against a parked car, who he thought were in an intimate embrace

until the man threw the woman to the ground and began assaulting her. (N.T. at 178-

179). Mr. Cicak immediately called 911. He then circled the nearby blocks so he could

drive past on Second Street again. (N.T. at 180-181). He reported that the male was

wearing a white T-shirt, jeans and a black hat. (N.T. at 190).


       When Mr. Cicak arrived back on Second Street, he saw the same pair but now

the assault was occurring in the street with the male punching and kicking the female.

(N.T. at 180-181). At all times, Cicak was on the telephone with 911 describing the

events he was witnessing. (N.T. at 181). He passed them and looped around a third

time when he saw the assault stop and the male jump into the passenger side of a cab

and leave. (N.T. at 181). Mr. Cicak tried to follow the cab straight on Second Street to

obtain a license plate number; however, he was unsuccessful. (N.T. at 181-182). He

then circled back a third time to ascertain the condition of the female but, when he

arrived at the area where the assault took place, she was gone. (N.T. at 182). After one

more loop to see if she was walking along Second Street, he encountered the police at

the scene of the assault. (N.T. at 182). Mr. Cicak stopped to speak with the police to

relay what he had witnessed. (lg.)


      Approximately two to three months later, Detective William Jackson ("Det.

Jackson"), a Detective with the Dauphin County District Attorney's Office, contacted Mr.

                                                 7
Cicak to discuss the events he had observed in the early morning of August 1, 2013.

(N.T. at 184).   During the meeting with Det. Jackson, Mr. Cicak identified Mr. Weathers

in a photo array as the man he saw assaulting the woman on Second Street. (N.T. at

184; 197). Mr. Cicak identified Weathers again as the perpetrator during the preliminary

hearing. (N.T. at 186-187).


       Upon arrival at the hospital, Shaw remembers parking and falling out of the car

as she tried to exit. (N.T. at 48-49). Her nose was broken in three places, she had cuts

and bruises and a concussion. (N.T. at 49-54). In the emergency room, her injuries

were treated, she was cleaned up and provided a change of clothes. (!Q_.)


       Abigail Glenzel ("Nurse Glenzel") was the nurse who treated Ms. Shaw on the

night of August 1, 2013, when she was admitted to the emergency room for treatment.

(N.T. 203-204). Nurse Glenzel cleaned her, administered medication and monitored her

vital signs from the time she arrived until discharge. (N.T. at 204-205). Nurse Glenzel

described Ms. Shaw as very tearful and upset by the events of the night. (N.T. at 206).

Shaw reported to Nurse Glenzel that she had been locked out of her house and when

her boyfriend returned he assaulted her. (N.T at 206). Hospital personnel had called

the police and the YWCA. (N.T. at 206).


       Detective Christopher Silvio ("Det. Silvio") had been dispatched to the area of

Second and Paxton Streets near a fire house to investigate a report of a male beating a

female but, when he arrived no one was in the area. (N.T. at 208-209). Det. Silvio

spoke to Mr. Cicak about what he had seen earlier. (N.T. at 209). Shortly thereafter,




                                            8
Officer Pyles notified him that a female assault victim had come into Harrisburg Hospital

so, he proceeded there. (!g_.)


        Det. Silvio spoke to Ms. Shaw in the emergency room where he found her to be

very upset, crying and initially difficult to speak with. (N.T at 210). He testified that she

was bleeding from her face, he nose was swollen and her eyes were bruising. (N.T. at

210).   Once she calmed down enough for him to communicate with her, Det. Silvio

asked who assaulted her; she reluctantly replied that her boyfriend, Russell Weathers

had beaten her. (N.T. at 210-211 ). Ms. Shaw explained to Silvio that she had been

locked out of her house when Weathers arrived in a taxi and needed to be let in. (N.T.

at 211 ). She went on to describe how his arm came out of the car window, grabbed her

neck and bounced her head off the cab then, after he exited the cab, he slammed her

head on the sidewalk and road. (!g_.)


        While interviewing Ms. Shaw, Det. Silvio noticed bruising on her arms and when

questioned about it, she volunteered that they were from prior assaults by Mr.

Weathers. (N.T. at 213). As it is the policy of the Harrisburg Police Department to

obtain a written statement from domestic violence victims, he requested Shaw to

complete form; however, she refused and indicated such on the police form. (N.T. at

211-212).


         Det. Silvio was also involved in the investigation of the December 8, 2012 call to

911. (N.T. at 213). The police traced the phone number from the call to Ms. Shaw's

residence which led them to the South Second Street apartment. (N. T. at 213-214).

The 911 call was from a male reporting that he was killing a female at that address.



                                              9
(N.T. at 214).     Upon arrival, Det. Silvio encountered a cab parked outside and while

questioning the driver, Weathers exited the residence. (N.T. at 214). When detained

and questioned by the police about the call, he denied knowing anything about it. Det.

Silvio proceeded inside, spoke with Ms. Shaw, checked on the safety of the residents

and, since there were no signs of a violent incident, released everyone from the scene.

(N.T. at 215).     At trial, Det. Silvio identified Mr. Weathers as the male he had detained

and questioned on that night. (N.T. at 215).


       When Ms. Shaw was discharged from the hospital she took her kids to Lebanon,

Pennsylvania to stay with a family friend that considered a mother figure. (N.T. at 55).

She then went to her real mother's place of work to have her return to the apartment

with her. (N.T. at 54-55). As the hospital had arranged for a locksmith to meet at the

Second Street residence to enable Shaw to enter and retrieve her belongings, she had

to be there by 9:00 a.m. (N.T. at 55-56).


       When Shaw arrived with her mother, the locksmith was already there. The

locksmith began to work on the lock for the outside door which allowed entry to a

hallway and interior apartment doors. (N.T. at 56-57). While the locksmith was working,

Mr. Weathers opened the door. (N.T. at 56-58). Ms. Shaw was behind the locksmith

who moved to block Weathers' access to her while she passed by to run up the stairs to

the apartment. (N.T. at 57-58). Shaw said that, when she was entering the residence,

Mr. Weathers was "running his mouth" at her and then went into the 1st floor apartment.

(N.T. at 58-59).




                                               10
         According to Ms. Shaw, once she retrieved her belongings, she left with her

 mother to travel back to Lebanon after stopping at her school for her books and other

 items. (N.T. at 61 ). She recalled ending up at her "other mom's house" in Lebanon and

 staying for the next two days. (N.T. at 61 ).


         When Ms. Shaw entered the apartment she observed destruction throughout the

entire house.     (N.T. 63-64). Examples of what she had encountered are: overturned

furniture, broken furniture, torn clothing, broken glass from mirrors and picture frames,

torn photographs, and a toilet ripped from the floor spouting water. (N.T. at 64-78).      Ms.

Shaw noted that none of Mr. Weathers' belongings had been destroyed. (N.T. 73).


        Ms. Shaw testified that she does not remember calling 911 when she and the

locksmith encountered Weathers at the apartment or speaking to police when they

arrived. (N.T. at 59-60).   However, she identified her voice on a recording of the 911

call. (N.T. at 60; Com. Exh. 14).


        Ronald Ahmay ("Mr. Ahmay") is the locksmith who assisted Ms. Shaw testified at

trial. When Ms. Shaw arrived, Mr. Ahmay commented on the condition of her face due

to her injuries to which she replied that "[m]y boyfriend put me in the hospital ... he broke

my nose and gave me a concussion." (N.T. at 220). Mr. Ahmay became concerned for

their safety so he asked Shaw where her boyfriend was and she stated that he was in

jail. (N.T. at 220).


        Mr. Ahmay proceeded to pick the lock when Weathers suddenly opened the

door. (N.T. at 220-221).    At that point in time, Weathers ran into a door on the left for the

151 floor apartment and Shaw ran past Ahmay to go up the stairs. (N.T. at 221). While


                                                 11
Mr. Ahmay stood in the foyer to ensure Ms. Shaw's safety, Weathers kept screaming "I

did this for you." (N.T. at 221 ). Ms. Shaw came down the steps and Mr. Weathers ran

around the side of the house. (N.T. at 222).        Mr. Ahmay testified that the police

apprehended him in the alley behind the house. (N.T. at 222).          In court, he identified

Weathers as the defendant. (N.T. at 221).


           On August 1, 2013, Corporal Robert Minnier ("Cpl. Minnier") was dispatched to

the South Second Street location in response to a call for a wanted male and property

damage. (N.T. at 225). As he drove to the location, he received a radio call that Officer

Sanderson had spotted the suspect nearby in the area of River and Mary Streets so, he

proceeded there to assist in the apprehension. (N.T. at 225-226).         Once Weathers was

in custody he, along with Officer Bielenda, met with Ms. Shaw to obtain further

information and photograph the property damage. (N.T. at 227-228).            Cpl. Minnier

identified Weathers as the defendant at trial. (N.T. at 227).


           Despite the August 1, 2012 incident, Ms. Shaw continued to remain in contact

with Mr. Weathers. (N.T. at 79-80).    She even contacted him by telephone the next day,

August 2, 2012. (N.T. at 80-82; Com. Exh. 74-75).         She confronted him for smacking

her head off the ground and at that point he did not deny it or ask who had hurt her.

(N.T. at 262-264;    Com. Exh. 74). Ms. Shaw stated that when she contacted Mr.

Weathers, she tried to have him see the situation from her point of view in that he was

supposed to love her and yet, he was hurting her and he destroyed their home. (N.T. at

84;164).     Ms. Shaw wanted to get the "good times" and what she considered to be her

family back again. (N.T. at 85-87).




                                               12
        In the aftermath of the incident, while she was emotionally processing the

 progression of her relationship with Mr. Weathers and her "mixed feelings of love and

 hurt", Ms. Shaw continued to stay in contact by telephone, email and in person.       (N.T. at

87-99; 136-140; 170-176).       Ms. Shaw refused to provide a statement to Det. Jackson

implicating Mr. Weathers and also refused to appear for the preliminary hearing while

laboring under the misconception that the case would just disappear. (N.T. at 84-90;

126-127). When she later appeared for a rescheduled preliminary hearing, she

expressed a reluctance to testify and stated that some other unknown black male had

assaulted her. (N.T. at 89; 131-132).      Another factor contributing to Ms. Shaw's

unwillingness to identify Mr. Weathers as the perpetrator was his use of money to keep

control of her circumstances.    (N.T. at 92-94).   Mr. Weathers acknowledged that there

was a point in the relationship when she stopped working to finish school and, therefore,

she was reliant upon him for financial support. (N.T. at 255-256).     Once the matter was

set for trial, Ms. Shaw was arrested on two material witness warrants for failure to

appear on behalf of the Commonwealth. (N.T. at 90-95).


       A few months later, events in Ms. Shaw's life changed her perspective on

Weathers' treatment of her. (N.T. at 99). In December 2013, she experienced the loss

of a friend as a result of a domestic violence incident. (N.T. at 97). Ms. Shaw testified

that she cut off contact with Weathers between January 2014 and May 2014 because

"[she] felt like [she] was just here for convenience and [she] felt like it was going to

come back and hit [her] ten times harder." (N.T. at 97). She eventually contacted a

social worker for help. (N.T. at 97-98).




                                               13
           During this time, Appellant continued to try and contact her on his own and

through third parties in an attempt to persuade her that things had changed. (N.T. at

99).    In May of 2014, she began to believe that the relationship would change. (N.T. at

169).      However, shortly thereafter, Ms. Shaw became so alarmed by his increasing

aggression and repetitive attempts to contact her that she contacted one of her son's

fathers to ensure that he would take custody of the boy if something would happen

"[b]ecause I [felt] like Russell would hurt me, whether it is now or ten years from now."

(N.T. at 100-101).


           Ms. Shaw decided on her own to go to the District Attorney's Office. (N.T. at

101 ). Although she was in contact with Weathers a few times after coming to the

District Attorney's Office to cooperate, Ms. Shaw said when he called she would tell him

what he wanted to hear because the repetitive calls were every day were making her

tired. (N.T. at 161-162).    Prior to trial, she finally changed her telephone number. (N.T.

at 163).


        Appellant testified on his own behalf to present his version of events.    At the time

of the August 1, 2012 incident, Mr. Weathers was working for a painting contractor.

(N.T. at 233-235).     He testified that on the night beginning July 31, 2012 and leading

into the morning of August 1, 2012, he was working with an individual named Mike to

finish painting apartment units and hallways at the Camp Hill Plaza Apartments. (N.T. at

235-236).     Weathers said that they were up against a deadline so the two decided to

stay late and finish the painting. (N.T. at 236).




                                               14
        Mr. Weathers had seen Ms. Shaw earlier in the day when she came to the job

site asking to trade in the rental car they had been driving for a different one. (N.T. at

238).   He left work for a time to travel with Shaw to change rental vehicles. (N.T. at

249).   Mr. Weathers stated that after the cars were traded he called his co-worker Tony

to pick him up and bring him back to the work site. (N.T. at 240).    From work he went

back to Mike's apartment in downtown Harrisburg for a break then returned to the job

site to finish painting until approximately 2:00 a.m.   Weathers then spent the night at

Mike's place. (N.T. at 236; 249).


        According to Mr. Weathers, he returned to the South Second Street residence

the next morning to find the house "tore up" and thought Ms. Shaw had made the mess.

(N.T. at 240-241; 274). While waiting, he heard a noise from the front door. When he

went to the door, he saw Mr. Ahmay picking the door lock. (N.T. at 241). Weathers also

saw Ms. Shaw's face and asked her what had happened. (N.T. at 241; 275).          Ms. Shaw

walked past him and up the stairs as he went into the 151 floor bathroom to purportedly

turn off the water to stop the leaking. (N.T. at 241; 272-273). When Mr. Weathers

returned to the front door, he saw Ms. Shaw get in a car with her mother and realized

something was not right between them. (N.T. at 241-242). He began to walk away from

the house when he was apprehended by the police, arrested and taken to Dauphin

County Prison ("DCP"). (N.T. at 242).


        Once in DCP, Appellant called Ms. Shaw to find out why he was arrested. (N.T.

at 242-243). Weathers said that Ms. Shaw told him that she did not know what was

going on and she was being forced to give a story. (N.T. at 242). According to

Weathers, when he questioned Shaw about who beat her up and ransacked the house

                                             15
    at a DCP visiting day, she would not answer him. (N.T. at 243-244).     Weathers

    described Shaw as forceful and argumentative.    (N.T. at 247).   He believed that she had

    been the one to destroy the house as a result of her anger about past relationships.

    (N.T.   at 246-247).


             During the time he was in communication with Ms. Shaw while incarcerated,

Weathers believed that they were trying to figure out who had committed the crime and

    put their relationship back together. (N.T. at 248-249). Appellant was shocked when he

found out from Det. Jackson that Shaw had identified him as the person who assaulted

her and ransacked the house. (N.T. at 249).


            Weathers denied ever assaulting Ms. Shaw at any time. (N.T. at 237; 244).

During a phone conversation while he was incarcerated he apologized for messing

things up for her but, he said it had nothing to do with putting his hands on her. (N.T. at

258). Weathers said that the pair occasionally argued but the situation never escalated

to a point when it became physical because he would walk away from the confrontation.

(N.T. at 237). Although, he did acknowledge that there were some times when the

arguments would get physical and he'd push Shaw off him if she jumped on him. (N.T.

at 257).


            The Commonwealth presented Det. Jackson as a rebuttal witness.       Det. Jackson

had contact with Mr. Weathers when, after the charges were refiled and Weathers was

present at central booking, he requested to speak with Jackson. (N.T. at 291-292).

After advising Weathers of his Miranda5 rights, Det. Jackson spoke with him. (N.T. at



5
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                               16
292).   Appellant stated that on August 1, 2012, he had returned to the South Second

Street residence late at night and discovered that it had been broken into, ransacked

and that water was leaking everywhere. (N.T. at 293). Weathers did not say to Det.

Jackson that he thought Ms. Shaw had done it. Appellant stated that Ms. Shaw had not

returned to the home until the morning.    (N.T.   at 293).


                                        DISCUSSION


        Appellant's first claim of error is that this Court erred in admitting evidence of

prior purported assaults on the victim in violation of Pa.R.E. 404(b). "Admission of

evidence is within the sound discretion of the trial court and will be reversed only upon a

showing that the trial court clearly abused 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. Tyson, 119

A.3d 353, 357-58 (Pa. Super. 2015)(internal citations and quotation marks omitted).

Pursuant to the Pennsylvania Rules of Evidence:


        (1) Prohibited Uses. Evidence 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.
        (2) Permitted Uses. This 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.
        (3) Notice in a Criminal Case. In a criminal case the prosecutor must
        provide reasonable notice in advance of trial, or during trial if the court
        excuses pretrial notice on good cause shown, of the general nature of any
        such evidence the prosecutor intends to introduce at trial. (Pa.R.E.
        404(b)).

                                              17
        Appellant's 1925(b) statement is somewhat general as to what specific evidence

of prior assaults that was admitted at trial he is now challenging.   Therefore, to properly

address the issue, this Court will look to the pre-trial briefs submitted by the parties for

guidance.


        Prior to trial in this matter, the Commonwealth gave Appellant notice of its

intention to present evidence at trial of prior bad acts of the defendant for reasons other

than to prove a general criminal propensity.    More specifically, the Commonwealth was

seeking the admissibility of Ms. Shaw's testimony regarding the nature of the physically

and emotionally abusive relationship with Mr. Weathers as well as a December 8, 2012

call to 911 wherein he purportedly reported that he was going to kill the female in his

residence. With this evidence, the Commonwealth sought to show the defendant's,

motive, intent and malice towards the victim and to explain why Ms. Shaw failed to

identify Mr. Weathers as her assailant for an extended length of time.


       Defense counsel challenged the admissibility of the evidence as violative of

Pa.R.E. 404(b) contending that the purpose for which it was being presented was to

impermissibly prove Mr. Weathers committed this crime because he has had a violent

past. The defendant also argued that to allow the proffered evidence to explain why

Ms. Shaw refused to identify Appellant as the perpetrator, namely that she was afraid of

him due to his violent behavior, is also improper as it is more prejudicial than probative.

He posited that the fact that Weathers was incarcerated for approximately a year before

the trial and unable to injure her, vitiates her contention that she was afraid to identify

him; therefore, the only effect of the testimony would be to give the jury the impression

that defendant is just a bad person.

                                               18
       This Court had counsel brief the issues and heard argument immediately prior to

jury selection. The Commonwealth's motion was granted and Defense counsel's

objection was preserved for the record. (N.T. at 5).


       Upon review of the parties' positions and the applicable law, this Court finds that

the proffered evidence was properly admissible for multiple reasons set forth in Pa.RE.

404(b). More particularly, this Court finds that the Ms. Shaw's testimony regarding the

progression of her relationship with Mr. Weathers and her reluctance to identify him as

the perpetrator of the assault on her was relevant to prove motive, identity and an intent

to harm her as well as complete the story of this case and present the natural

development of the course of events. For the same reasons, Ms. Shaw's and Det.

Silvio's testimony in connection to the December 8, 2012 call to 911 as well as the

recording of the call played for the jury was also properly admitted under Rule 404(b).


       To prove its case, the Commonwealth was required to establish that Weathers

had the intent to inflict serious bodily harm on Ms. Shaw. The relevant purpose of Ms.

Shaw's testimony regarding the nature of her relationship was to establish an ongoing

intent on Appellant's behalf to inflict injury upon her if she did not do his bidding or

remain under his control at all times. The testimony painted a picture of an ever

increasing degree of jealousy and fear on the part of Weathers that Shaw was seeing

another man or would leave him. To combat his irrational thoughts, he placed

increasingly more restrictive controls on Ms. Shaw such as, isolating her from friends

and family, dictating where she was allowed to go when she left the house, if she was

allowed to leave at all and checking up on her at school and work. Eventually, the

physical violence began and escalated in frequency in a relatively short period of time

                                              19
given the fact that the parties had only lived in the same household for nine months

before the final assaultive incident occurred.


       Ms. Shaw testified that the first incident of physical violence took place during

November 2012, the month when the pair moved in together. (N.T. at 25-26).        During

that incident he dragged Shaw around by the neck and picked her up to throw her on

the ground. (lg_.) From that point on, the physical attacks became more violent and

frightening until culminating in the August 1, 2013 assault. Acts of violence described

by Shaw included being grabbed by the neck, having her head smacked into a window

or wall, having a TV smashed by a hammer because she was ignoring him and having

her arm cut from fending off a knife attack. Her testimony was supported by the

December 8, 2012 call to 911 for which Shaw identified Weathers as the caller and that

the call was made from the house number. During that call he did not just threaten

harm rather, he said was going to kill the female in the house.


      As aptly pointed out by the Commonwealth, our Supreme Court has recognized

that this type of evidence, whether the incidents were reported and/or resulted in a

conviction, is routinely admitted as relevant to demonstrate continual and escalating

abuse by the defendant of the victim and establish "that 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, 570 Pa. 117,

137, 808 A.2d 893, 905 (2002) citing Commonwealth v. Walker, 540 Pa. 80, 656 A.2d

90 (1995), cert. denied, 516 U.S. 854, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995). The

evidence was properly admitted to complete the story and establish Appellant's motive

and intent to continually harm Ms. Shaw.

                                             20
           With respect to Appellant's position that the evidence should be inadmissible as it

    is more prejudicial than probative, this Court finds that the argument is without merit for

    several reasons.   As for proving motive, the evidence of Weathers' controlling behavior

    due to jealousy and unfounded accusations of cheating on the part of Ms. Shaw

    corroborates her identification of Weathers as the perpetrator of the assault. Ms. Shaw

    testified that on the night of the incident she immediately walked up to Appellant and

    told him she was locked of the house but, his reaction was to grab her by the neck and

    smack her head into the front of the cab while yelling "bitch, you're playing me."

          Additionally, the long term gradual increase in the intensity of the violence,

    control and isolation is probative as to Weathers' intent on the night of August 1, 2012,
                                                             .·    -

when he returned home to find that Shaw was not in the house as she was supposed to

    be in his mind. This is yet another example of Weathers thinking that she was out of the

    house doing something he thought she should not be doing and responding with

violence. Finally, the Commonwealth did not produce evidence of a single, isolated

incident; rather, the Commonwealth produced "a chain of evidence illustrating

Appellant's continual abuse ... ". Drumheller, 808 A.2d 893, 904 quoting

Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764, 772 (1986) cert. denied 480

U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). The Appellant's behavior over the

course of the relationship showed the development of his malicious intent towards Ms.

Shaw which establishes a motive for the vicious assault. Commonwealth v. Melendez-

Rodriguez, 856 A.2d 1278 (Pa. Super. 2004); Commonwealth v. Funk, 29 A.3d 28

                       6
(Pa. Super. 2011 ).        In conclusion, this Court finds that appropriate discretion was


6
 This Court also notes that pre-trial, defense counsel was contemplating a request for a jury instruction
regarding the limited purpose for which the evidence of prior assault may be considered; however,

                                                    21
exercised in the admission of evidence of prior assaults by Weathers directed at Shaw

for the purpose of establishing intent, motive and to show the complete chain of events

in their relationship leading up to the crime.


         Appellant's second claim of error is a challenge to the sufficiency of the evidence

with respect to the "serious bodily injury" element of the aggravated assault statute. It is

well established that:


         As a successful sufficiency of the evidence claim precludes a re-trial and
         results in discharge as to the crime in question, we address Appellant's
         sufficiency challenges at the outset. Commonwealth v. Brown. 52 A.3d
        320, 324 (Pa.Super. 2012). In analyzing such claims, "we must determine
        whether the evidence admitted at trial, and all reasonable inferences
        drawn therefrom, when viewed in a light most favorable to the
        Commonwealth as verdict winner, support the conviction beyond a
        reasonable doubt." Id. at 323. Critically important, we must draw all
        reasonable inferences from the evidence in favor of the Commonwealth as
        the verdict winner. Commonwealth v. Hopkins, 67 A.3d 817, 820
        (Pa.Super. 2013). "Where there is sufficient evidence to enable the trier of
        fact to find every element of the crime has been established beyond a
        reasonable doubt, the sufficiency of the evidence claim must fail." Brown,
        supra at 323. Of course, "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." Id.

        The Commonwealth can meet its burden "by wholly circumstantial
        evidence and any doubt about the defendant's guilt is to be resolved by
        the fact finder unless the evidence is so weak and inconclusive that, as a
        matter of law, no probability of fact can be drawn from the combined
        circumstances." Id. It is improper for this Court "to re-weigh the evidence
        and substitute our judgment for that of the fact-finder." Id. Additionally, "the
        entire record must be evaluated and all evidence actually received must
        be considered." Id.
Commonwealth v. Kelly, 78A.3d 1136, 1139 (Pa. Super. 2013).


        The pertinent sections of the aggravated assault statute with which Weathers

was charged read as follows:

defense counsel opted against having the court instruct the jury on that particular issue. (N.T. at 325).

                                                     22
           (a) Offense defined.--A person is guilty of aggravated assault if he:

           (1) 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;

          (2) attempts to cause or intentionally, knowingly or recklessly causes
          serious bodily injury to any of the officers, agents, employees or other
          persons enumerated in subsection (c) or to an employee of an agency,
          company or other entity engaged in public transportation, while in the
          performance of duty;

                                               *******

          (18 Pa.C.S.   §2702(a)(1 )-(2)).

          Appellant specifically challenges the sufficiency of the evidence presented by the

Commonwealth to prove serious bodily injury. The law on this issue is well-established.

The appellate courts have defined "serious- bodily injury" as, "[b]odily 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.     § 2301 ). With respect to the Commonwealth's      burden of proof:


          In order to sustain a conviction for aggravated assault, the Commonwealth
          does not have to prove that the serious bodily injury was actually inflicted
          but rather that the Appellant acted with the specific intent to cause such
          injury. Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa.Super. 2006).
          Further,

          [w]here the victim does not sustain serious bodily injury, the
          Commonwealth must prove that the appellant acted with specific intent to
          cause serious bodily injury. The Commonwealth may prove intent to cause
          serious bodily injury by circumstantial evidence. In determining whether
          the Commonwealth proved the Appellant had the requisite specific intent,
          the fact-finder is free to conclude the accused intended the natural and
          probable consequences of his actions to result therefrom. A determination
          of whether an appellant acted with intent to cause serious bodily injury
          must be determined on a case-by-case basis.

          An intent is a subjective frame of mind, it is of necessity difficult of direct
          proof[.] We must look to all the evidence to establish intent, including, but
          not limited to, appellant's conduct as it appeared to his eyes [.] Intent can
          be proven by direct or circumstantial evidence; it may be inferred from

                                                23
        acts or conduct or from the attendant circumstances. Moreover,
        depending on the circumstances even a single punch may be sufficient."

 Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008) (internal citations and

 quotations omitted).


        Upon review of the record, the evidence presented at trial viewed in light most

favorable to the Commonwealth as the verdict winner is more than sufficient to establish

that Ms. Shaw suffered serious bodily injury. Cast in the light of the past circumstances

of Weathers' and Shaw's violent relationship, including prior assaults and calls to 911

with threats to kill the female in the house, the jury heard testimony about Ms. Shaw

being thrown down and having her head pounded against the hood of an automobile

and the sidewalk. The assault eventually spilled out into the street which put her at risk

of being struck by an automobile in addition to suffering a beating. Mr. Ahmay

witnessed the beating and also testified to witnessing Appellant punching and kicking

Ms. Shaw. Ms. Shaw was treated at the hospital emergency room due to the assault as

she had sustained a broken nose, facial lacerations and bruises as well as a

concussion. The overwhelming evidence of record would easily permit the jury to infer

that Appellant intended to inflict serious bodily injury to Ms. Shaw. Whether the injuries

were actually life threatening, although a strong argument may be made that they were,

is of no moment as "the conduct giving rise to the inference that the defendant intended

to inflict serious bodily harm need not in itself be life threatening." Commonwealthv.

Catering, 451 Pa. Super. 42, 46, 678 A.2d 389, 391 (1996) citing Commonwealth v.

Elrod, 572 A.2d 1229, 1231. Accordingly, Appellant's conviction for aggravated assault

must stand as this Court did not err in denying his Motion for a Directed Verdict of

Acquittal.

                                           24
stand. In conclusion, this Court finds th.a: ~ent of sentence should




                                           i          /!-,//
                                        RICl-=IARDA.(U2WIS, PRESIDENT JUDGE




                                                                                                                ·:. :.~   _-.
MEMORANDUM DATE:
                                                                                          -·-·· -···
                                                                                                ·--:,   (_,_)


Distribution:                                                    . .--:7, -.;
Joseph Cardinale, Jr., Dauphin County District Attorney's Offic~
                                                                                                         \J)
Michael Palermo, Esquire, Palermo Law Offices, 3300 Trindle Road, Camp Hill, PA 17011
Dauphin County Clerk of Courts -;,(..                                                fY14-.5c.
Superior Court Prothonotary C///.--1. /Yv1i!: L
FILE - Pres. Judge Richard Lewis




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