J-S55027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEESEAN MALLOY,

                            Appellant                 No. 420 WDA 2015


      Appeal from the Judgment of Sentence Entered November 17, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0009852-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 29, 2015

        Appellant, Leesean Malloy, appeals from the judgment of sentence of

two years’ probation, imposed after he was convicted of simple assault.

Appellant alleges the verdict is against the weight of the evidence.     We

affirm.

        Appellant’s conviction stems from an incident on June 26, 2014, where

two officers witnessed him choking his girlfriend, Nara Caba (“Ms. Caba”).

Appellant was arrested and ultimately found guilty of simple assault1

following a non-jury trial held on November 14, 2014. After sentence was
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant was convicted of simple assault under 18 Pa.C.S. § 2701(a)(1).
Pursuant to Section 2701(a)(1), a person is guilty of assault if he “attempts
to cause or intentionally, knowingly or recklessly causes bodily injury to
another.” 18 Pa.C.S. § 2701(a)(1).
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imposed, Appellant filed a post-sentence motion alleging that the verdict

was against the weight of the evidence, which was denied by the trial court

on February 11, 2015. Appellant subsequently filed a timely notice of appeal

and a timely, court-ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

      On appeal, Appellant presents one issue for our review: “Did the trial

court render a verdict that was contrary to the weight of the evidence

presented where the Commonwealth itself presented two equally reasonable,

mutually inconsistent, and contradictory inf[e]rences, thereby proving

neither?” Appellant’s Brief at 4.

      To begin, we note our standard of review in a weight of the evidence

claim:

      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, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).




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        Here, the evidence produced at trial established that on June 26,

2014, at approximately 2:00 a.m., Appellant and Ms. Caba were walking

together in the Shadyside neighborhood of Pittsburgh. N.T. Trial, 12/17/14,

at 6.    City of Pittsburgh Police Officer John McCue testified that, while on

duty, he and his partner, Officer Churillo, were approaching the intersection

of Ellsworth and College when they observed Appellant choking Ms. Caba.

Id. at 10.    Officer McCue saw that Appellant had both hands around Ms.

Caba’s neck and that Ms. Caba had both her hands on Appellant’s wrists,

attempting to stop him. Id. at 11. Within seconds, the officers exited their

vehicle and announced themselves, at which time Ms. Caba was able to get

away and slapped Appellant.       Id.    The officers then took Appellant into

custody. Id. Officer McCue stated that Ms. Caba told the officers that she

and Appellant had gotten into an argument about her ex-boyfriend and, that

during the altercation, Appellant said “he was going to choke the fuck out of

her.” Id. at 12.

        Contrary to Officer McCue’s testimony, Ms. Caba testified during the

non-jury trial that Appellant merely grabbed her arm while they were

walking because he needed help after recently having surgery on his foot.

Id. at 7. During re-cross examination, Ms. Caba further testified that

Appellant did not put his hands around her neck and that the officers “just

came out of nowhere.” Id. at 15, 16. Ms. Caba claimed that she told the

officers she did not want to press charges against Appellant. Id. It is this




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contradictory testimony that is the subject of Appellant’s weight of the

evidence claim.

     Appellant asserts that the trial court abused its discretion when it

weighed the testimony of Officer McCue over the testimony of Ms. Caba.

Appellant’s Brief at 10. Appellant argues that the testimony of Officer McCue

and that of Ms. Caba were “equally reasonable and mutually inconsistent”

and, therefore, the Commonwealth failed to prove either version of the

incident. Id. In support of his argument, Appellant relies on the principle

that “[w]hen two equally reasonable and mutually inconsistent inferences

can be drawn from the same set of circumstances, a factfinder must not be

permitted to guess which inference it will adopt, especially when one of the

two guesses may result in depriving a defendant of his life or his liberty.”

Commonwealth v. Montalvo, 986 A.2d 84, 99 (Pa. 2009) (quoting

Commonwealth v. Knee New, 47 A.2d 450, 468 (Pa. 1946)). Appellant

also cites the following principle set forth in Knee New: “when a party on

whom rests the burden of proof in either a criminal or a civil case, offers

evidence consistent with two opposing propositions, he proves neither.”

Knee New, 47 A.2d at 468.

     In its opinion, the trial court explains why Appellant’s reliance on the

aforementioned principles established in Knee New is misplaced:

     This long standing legal principle is best understood in the
     context of the Knee New facts. It was a murder prosecution
     resting almost exclusively upon circumstantial evidence. As we
     know, circumstantial evidence is the inferences taken from
     established facts. That is the important part of Knee New and

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      that is where Malloy’s reliance falters. The known facts or, using
      language from Knee New, the positive facts came from [Officer
      McCue] who saw [Appellant] with his hands around the neck of
      [Ms. Caba]. This officer also relayed what [Ms. Caba] said
      immediately after [Appellant] was separated from her – that
      [Appellant] “was going to choke the f*** out of her.” These
      positive facts satisfy the elements of the crime. There are no
      competing inferences that point to innocence and another one to
      guilt.

Trial Court Opinion (“TCO”), 4/13/15, at 3. (internal citations omitted).

      Moreover, we again note that “[w]here evidence conflicts, it is the sole

province of the fact finder to determine credibility and to believe all, part or

none of the evidence.” Commonwealth v. Lyons, 833 A.2d 245, 259 (Pa.

Super. 2003).    Thus, Appellant is incorrect in his assertion that the trial

court cannot choose to believe one witness over another.

      Here, the trial court considered the testimony presented at trial and

found Ms. Caba’s testimony to be non-credible as evidenced by the

following:

            I think what the Commonwealth did was they presented
      who they believe to be the victim and what they allowed me to
      see is that she will distort reality to protect her boyfriend.

            I think what they showed me was these officers were
      riding down the street and saw a woman being accosted and got
      out and intervened because they saw her being choked and … in
      the course of trying to get some order they asked her whether
      she wanted to press charges. The officers wouldn’t ask someone
      if they wanted to press charges if it was two lovers strolling
      down the street holding hands and holding one another’s arms.
      For her to tell me that they asked whether you want to press
      charges[,] to me[,] makes me believe she is lying today and that
      her story is inconsistent with the reality that the police have
      informed me of. It becomes an issue of credibility[. W]ho do I
      believe[? D]o I believe … [t]wo officers riding around at night,
      one of which is here today, want[] to stop their car to intervene

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      on two lovers walking home at two o’clock at night or whether
      this woman who comes in and tells me the story her boyfriend
      had surgery on his foot and he was hanging onto her to stop
      from falling. Those are the realities, there is not a lot of overlap.

            I believe she is lying to protect him.

TCO at 17-19.

      “[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 simple assault

were proven beyond a reasonable doubt, and that Appellant committed

these offenses. 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: 9/29/2015




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