J-S29030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GEORGE FRASER, SR.                         :
                                               :
                       Appellant               :   No. 2140 EDA 2018

           Appeal from the Judgment of Sentence Entered July 6, 2018
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0002402-2017


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

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 01, 2019

        George Fraser, Sr., appeals from the judgment of sentence, entered in

the Court of Common Pleas of Chester County, after a jury convicted him of

simple assault1 and terroristic threats2 and the trial court, sitting without a

jury, found him guilty of two counts of the summary offense of harassment.3

Upon careful review, we affirm.

        On the evening of July 15, 2017, George Fraser, Jr., arrived home from

a shopping trip to Target with his twin brother, Jeremy, to find the rest of his

family—his mother, Melissa, his other brother, Alex, and his father,

Appellant—engaged in an argument over Appellant’s abuse of alcohol. The

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1   18 Pa.C.S.A. § 2701(a)(3).

2   18 Pa.C.S.A. § 2706(a)(1).

3   18 Pa.C.S.A. § 2709(a)(1).
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entire family had arrived home from vacation earlier in the day, at

approximately 1:00 p.m., and Appellant had drunk between five and ten beers

since that time. N.T. Trial, 5/17/18, at 41-42. The previous night, Appellant

had consumed approximately 27 beers.        Id. at 42.   The family sought to

convince Appellant to seek help for his drinking.    During the intervention,

Appellant repeatedly tried to drown out his family by turning up the volume

on the television. Id. at 9. The argument began to escalate when George,

Jr., unplugged the television and Jeremy took a bottle of beer away from

Appellant and poured it down the kitchen sink. Id. at 10. At some point, the

entire family ended up in the kitchen, id. at 11, where Appellant punched

Jeremy in the face. Id. at 73.

      During the fracas in the kitchen, Melissa became very upset and

threatened to commit suicide by overdosing on medication. Id. at 11. After

George, Jr., took a bottle of pills away from her, Melissa fled the kitchen and

ran to the master bedroom, which she shared with Appellant. Id. George,

Jr., followed her, believing that she would attempt to ingest additional pills

she kept in the bedroom. Id. After removing all medicine from the bedroom

and attempting to calm his mother, George, Jr., walked out into the hallway

toward the kitchen. At that point, George, Jr., heard Appellant yell “I’m going

to end this” and run toward the bedroom, near where George, Jr., was

standing. Id. at 12-13. George, Jr., took those words as a threat, because

Appellant kept guns and ammunition in the master bedroom. Id. at 13.




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      Anticipating that Appellant would attempt to retrieve a weapon from his

desk in the bedroom, George, Jr., ran ahead to block Appellant’s access to the

desk. Id. When Appellant realized he could not get past George, Jr., to access

the desk, he reached into a nearby armoire, where he stored additional

weapons and ammunition.       Id. at 14. Appellant retrieved a gun from the

armoire, unholstered it, and pointed it at George, Jr.’s chest. Id. at 14-16.

Although George, Jr., did not know if the gun was loaded or not, he had been

taught “to treat all guns as if they were loaded, not to point them, not to play

around with them.” Id. at 16. George, Jr., testified that he was “terrified.

[He] thought [his] life was in danger, [his] mom, [his] brothers’ lives were in

danger.” Id. When Appellant aimed the gun at George, Jr., he stated “I’m

going to kill you, you’re dead.” Id. at 20, 74-75. At some point after Appellant

pointed the gun at his son, George, Jr., reached into a nightstand, retrieved

another gun, and aimed it at Appellant. Id. at 17. Melissa and Jeremy, who

had entered the room during the confrontation between Appellant and George,

Jr., were finally able to disarm Appellant. George, Jr., contacted 911, at which

time the operator instructed him to leave the home. Id. at 22. Officer Robert

Edwards of the West Goshen Township Police Department arrived shortly

thereafter to find George, Jr., and Melissa in the front yard of the residence,

crying hysterically. N.T. Trial, 5/18/18, at 91.

      Appellant was arrested and charged with four counts each of terroristic

threats,   recklessly   endangering   another   person,   simple   assault,   and

harassment. The Commonwealth subsequently withdrew all charges except

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one count each of terroristic threats and simple assault, plus four summary

counts of harassment. After a trial, held on May 17 and 18, 2018, a jury found

Appellant guilty of terroristic threats and simple assault. The trial court found

Appellant guilty of two counts of harassment as to George, Jr., and Jeremy

and not guilty of the counts related to Melissa and Alex. On July 6, 2018, the

court sentenced Appellant to 8½ to 23 months’ incarceration followed by six

months of probation. Appellant filed a timely appeal, followed by a court-

ordered concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). He raises the following issues for our review:

      1. Did the trial court err in entering a judgment of guilt on the
      charge of simple assault where the Commonwealth failed to prove
      beyond a reasonable doubt that [Fraser] acted with the necessary
      intent?

      2. Did the trial court err in allowing the Commonwealth to elicit
      testimony about a prior unrelated offense, where that evidence
      was irrelevant and unfairly prejudicial?

Brief of Appellant, at 6 (unnecessary capitalization omitted).

      Appellant first challenges the sufficiency of the evidence supporting his

conviction for simple assault.

      “The determination of whether sufficient evidence exists to
      support the verdict is a question of law; accordingly, our standard
      of review is de novo and our scope of review is plenary.”
      Commonwealth v. Johnson, [] 160 A.3d 127, 136 ([Pa.] 2017)
      (citation omitted). In assessing Appellant’s sufficiency challenge,
      we must determine “whether viewing all the evidence admitted at
      trial in the light most favorable to the [Commonwealth], there is
      sufficient evidence to enable the fact-finder to find every element
      of the crime beyond a reasonable doubt.” Commonwealth v.
      Grays, 167 A.3d 793, 806 (Pa. Super. 2017) (citation omitted).
      “[T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. . . . [T]he finder

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      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part[,] or
      none of the evidence.” Commonwealth v. Waugaman, 167
      A.3d 153, 155–56 (Pa. Super. 2017) (citation omitted).

Commonwealth v. Edwards, 177 A.3d 963, 969–70 (Pa. Super. 2018).

      A person commits the offense of simple assault if he “attempts by

physical menace to put another in fear of imminent serious bodily injury.” 18

Pa.C.S.A. § 2701(a)(3). “Serious bodily injury” is defined 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.A. § 2301. For a conviction of simple assault

by physical menace, “[t]he elements which must be proven are intentionally

placing another in fear of imminent serious bodily injury through the use of

menacing or frightening activity.” Commonwealth v. Reynolds, 835 A.2d

720, 726 (Pa. Super. 2003). Intent may be proven by circumstantial evidence

and may be inferred from the defendant’s conduct under the attendant

circumstances.” Id.

      Appellant argues that the Commonwealth’s evidence was contradictory

and, therefore, “allowed the jury to infer two equally plausible scenarios.”

Brief of Appellant, at 16.   In support of that assertion, Appellant points to

inconsistencies between statements made by George, Jr. and Melissa to police

on the night of the incident and their testimony at trial. Appellant also cites

his own testimony claiming that he only brandished a weapon after George,

Jr., first pulled a gun on him.



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       Appellant’s arguments are more properly characterized as challenging

the weight, not the sufficiency, of the evidence, as they attack the credibility

determinations made by the jury. See Commonwealth v. W.H.M., Jr., 932

A.2d 155, 160 (Pa. Super. 2007) (claim that jury should have believed

appellant’s version of event rather than that of victim goes to weight, not

sufficiency of evidence); Commonwealth v. Wilson, 825 A.2d 710, 713–14

(Pa. Super. 2003) (review of sufficiency of evidence does not include

assessment of credibility of testimony; such claim goes to weight of evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997)

(credibility determinations are made by finder of fact and challenges to those

determinations go to weight, not sufficiency of evidence). In order to preserve

a challenge to the weight of the evidence, the claim must first be raised in the

trial court.   Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super.

2003). Because Appellant failed to properly preserve a weight claim below,

we find it to be waived.4 Pa.R.Crim.P. 607(A).

       Appellant’s second and final claim relates to the trial court’s admission

of evidence concerning his arrest for driving under the influence of alcohol

(“DUI”) on the evening prior to the day of the incident in question.        The


____________________________________________


4  Even if Appellant had properly argued his sufficiency claim, he would be
entitled to no relief. The evidence adduced at trial, viewed in the light most
favorable to the Commonwealth, was more than sufficient to demonstrate that
Appellant, through his words and actions, placed George, Jr., in fear for his
life.


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applicable standard of review for a challenge to the admissibility of evidence

is well settled.

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of its
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      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. Sherwood, 982 A.2d 483, 495 (Pa. 2009) (citation and

quotation marks omitted).

      Pursuant to the Pennsylvania Rules of Evidence, all relevant evidence is

admissible at trial, except to the extent otherwise provided by law. Pa.R.E.

402. Evidence is relevant if it has any tendency to make a fact that is of

consequence in determining the action more or less probable than it would be

without the evidence. Pa.R.E. 401. A court may exclude relevant evidence if

its probative value is outweighed by a danger of “unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” Pa.R.E. 403.

      Generally, evidence of a prior crime, wrong, or other act is not

admissible to prove a person’s character to show that, on a particular

occasion, the person acted in accordance with that character.              Pa.R.E.

404(b)(1). However, evidence that might otherwise be inadmissible may be

introduced for some other purpose, particularly where Appellant's own

testimony “opens the door” for such evidence to be used for impeachment


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purposes. Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa. Super.

2018). See Pa.R.E. 607(b) (“The credibility of a witness may be impeached

by any evidence relevant to that issue, except as otherwise provided by

statute or these rules.”). “A litigant opens the door to inadmissible evidence

by presenting proof that creates a false impression refuted by the otherwise

prohibited evidence.” Murphy, 182 A.3d at 1005, quoting Commonwealth

v. Nypaver, 69 A.3d 708, 716–17 (Pa. Super. 2013) (citations omitted).

      At trial, the Commonwealth sought to demonstrate that Appellant had

been drinking heavily since the day prior to the incident in question, which led

to the intervention by his family, during which the incident in question

occurred. The trial court addressed this issue as follows:

      Prior to the trial commencing, the parties agreed that Appellant’s
      DUI arrest from the evening of July 14th, the previous day, would
      not be addressed during the trial. It was determined that facts
      related to Appellant’s drinking the day before could be properly
      referenced in a general manner to allow the jury to examine the
      events of July 15th in context. . . .          A review of the
      Commonwealth’s questions to its witnesses confirms that
      questions that would elicit a response referencing the DUI arrest
      were not asked. Nonetheless, testimony related to the DUI arrest
      was volunteered by Appellant during [cross-examination.] . . .

      [Specifically,] the jury had heard from the Commonwealth’s
      witnesses that Appellant was drinking on July 14th. Appellant
      denied this fact. In an attempt to impeach Appellant on that
      denial, the Commonwealth appropriately asked if the reason he
      did not drive on July 15th was because of his drinking the prior
      day. Appellant denied that was the reason for his not driving.
      Without prompting[,] and in an attempt to bolster his credibility
      regarding his version of the events of July 14th, Appellant
      supplemented his answer and stated that the reason for his not
      driving was because of a driving citation that suspended his
      license. Once Appellant [made] this statement to bolster his own

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      credibility by implying that the [Commonwealth’s] witnesses were
      not truthful as to his drinking on July 14th, the Commonwealth
      [was] entitled to an opportunity to impeach Appellant and
      question him about the citation that Appellant claim[ed]
      prevented him from driving.

Trial Court Opinion, 11/7/18, at 10, 12-13 (internal citations omitted).

      We agree with the trial court that, once Appellant “opened the door” by

spontaneously testifying about his driving citation in an attempt to refute prior

testimony that he had been drinking on July 14, the Commonwealth was

entitled to question him as to the nature of that citation in order to impeach

Appellant’s testimony that he had not been drinking on July 14, the date he

received the citation. We can discern no abuse of discretion on the part of the

trial court in concluding that the probative value of the evidence outweighed

the danger of any unfair prejudice, especially in light of the fact that the trial

court instructed the jury not to consider the evidence “as anything other than

the part of the factual basis of the events.”     Id. at 12, quoting N.T. Trial,

5/18/18, at 140-41. Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa.

2011) (“The law presumes that the jury will follow the instructions of the

court.”). Accordingly, Appellant is entitled to no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/1/19


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