J-S20004-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

ARCHIE G. MOSSES

                        Appellant                  No. 3504 EDA 2015


         Appeal from the Judgment of Sentence November 9, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013782-2014


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                             FILED JULY 24, 2017

     Archie G. Mosses appeals from the aggregate judgment of sentence of

three to six years incarceration followed by a five year period of probation

imposed following his bench trial convictions for, inter alia, prohibited

possession of a firearm and simple assault. We affirm.

     The trial court thoroughly set forth the facts established by the

Commonwealth and we adopt its summation as our own.

     The incident in this case took place on November 20, 2014. On
     that day at approximately 11:00 a.m., the Complainant, Latia
     Mosses, became involved in a verbal altercation with her
     husband, Appellant Archie Mosses, in the bedroom of their
     home. Their three-year-old child was in the bedroom with them
     at this time. The altercation became violent as Mr. Mosses
     began choking Ms. Mosses with his hands and slamming her
     around the bedroom. Appellant also pulled Complainant's hair,
     causing her braids to rip out from her scalp. Complainant
     attempted to free herself by biting and scratching the Appellant.
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      At one point in the scuffle, Appellant threw Complainant onto the
      bed and retrieved a gun from the nearby closet. Appellant
      pointed the gun at Complainant and told her he would "blow her
      fu**ing head off.”

      The Appellant's brother then came into the bedroom and took
      the gun from Appellant saying, "You know the safety isn't on."
      Appellant's brother then went back downstairs, taking both the
      gun and the three-year-old child with him. Complainant and
      Appellant continued to fight and Appellant began poking
      Complainant in the face with a screwdriver. Complainant finally
      ran downstairs with Appellant following behind her. Appellant
      asked his brother for the gun back, but his brother refused.
      Complainant then grabbed a knife from the kitchen to defend
      herself, but Appellant continued to walk toward her, saying "You
      think I won't still beat you the fu** up because you got a knife."
      Complainant dropped the knife and left for her aunt's house in
      order to call the police.

      When the police arrived, they noted that the Complainant had
      bruising under her left eye and red marks around her neck.
      Police then took the Complainant back to her home where she
      positively identified the Appellant. Police retrieved the firearm
      from the Appellant's brother who stated the firearm was his and
      that he had a license to carry permit. Records revealed the
      Appellant did not have a permit to carry a firearm. Complainant
      was then transported to the Northwest Detective Division
      (NWDD) where she was interviewed and had photographs taken
      of the bruising under her left eye, redness to the left side of her
      face, bruising to her left wrist, and red marks around her neck.

Trial Court Opinion, 7/19/16, at 3-4 (citations omitted).       Appellant was

charged with aggravated assault, prohibited possession of a firearm,

possession of an instrument of crime, terroristic threats, simple assault, and

recklessly endangering another person.     Following a bench trial, Appellant

was acquitted of aggravated assault and convicted of the remaining

offenses, and the trial court imposed the aforementioned sentence.




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      Appellant did not file post-sentence motions but filed a timely notice of

appeal.   Appellant complied with the trial court’s order to file a concise

statement of matters complained of on appeal and the court authored its

opinion in response. Appellant raises four claims for our review.

      1. Whether the verdict is against the weight of the evidence
      where there is insufficient evidence to establish that Defendant
      possessed a firearm, constructively or otherwise during the
      commission of the alleged crime where no weapon was found
      inside the property only one being legally carried by Appellant's
      brother.

      [2]. Whether the trial court erred in finding that the defendant
      was guilty of simple assault where there were no medical records
      of the alleged victim, and where the victim did not seek medical
      treatment for approximately one (1) day.

      [3]. Whether the trial court erred when it permitted and took
      into consideration evidence of the defendant's past conduct
      which was improperly referred to by the complaining witness on
      cross examination.

      4. Whether the [t]rial [c]ourt erred in permitting the
      Commonwealth to present prison tapes for which there was no
      proper foundation or authentication, the content of which
      contained prejudicial material and which prejudiced the outcome
      of the trial.

Appellant’s brief at 4-5 (second and third issues reordered for ease of

discussion).

      Appellant’s first issue concerns his conviction for prohibited possession

of a firearm.      Appellant conflates two distinct concepts: weight and

sufficiency.   The two claims have different standards of review as well as

separate remedies.     A claim stating that the evidence was insufficient to



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support the verdict asserts that the evidence set forth by the Commonwealth

failed to meet all the elements of the pertinent crime.    In reviewing the

sufficiency of the evidence we

     must determine whether the evidence admitted at trial, and all
     reasonable inferences drawn from that evidence, when viewed in
     the light most favorable to the Commonwealth as verdict winner,
     was sufficient to enable the fact finder to conclude that the
     Commonwealth established all of the elements of the offense
     beyond a reasonable doubt. It is well-established that the
     Commonwealth may sustain its burden of proof by means of
     wholly circumstantial evidence and the jury, while passing upon
     the credibility of witnesses and the weight of the evidence, is
     free to believe all, part, or none of the evidence.

Commonwealth v. Yandamuri, 159 A.3d 503, 514 (Pa. 2017) (quotation

marks and citations omitted). Whether the evidence was sufficient to

support the conviction presents a matter of law; our standard of review is de

novo and our scope of review is plenary. Commonwealth v. Walls, 144

A.3d 926, 931 (Pa.Super. 2016) (citation omitted). A successful sufficiency

challenge requires discharge. Commonwealth v. Ford, 141 A.3d 547, 552

(Pa.Super. 2016).

     A claim attacking the weight of the evidence, on the other hand,

concedes that there is sufficient evidence to support the verdict, but

questions which evidence the fact-finder should have believed.       Thus, a

successful weight challenge requires a new trial. Commonwealth v. Clay,

64 A.3d 1049, 1055 (Pa. 2013). A weight claim must first be presented to

the trial court and therefore must be preserved in a post-sentence motion.



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As we explained in Commonwealth v. Konias, 136 A.3d 1014, 1022

(Pa.Super. 2016):

      When we review a weight-of-the-evidence challenge, we do not
      actually examine the underlying question; instead, we examine
      the trial court's exercise of discretion in resolving the challenge.
      Commonwealth v. Leatherby, 116 A.3d 73, 82 (Pa.Super.
      2015). This type of review is necessitated by the fact that the
      trial judge heard and saw the evidence presented. Id.

Id. at 1022.

      Appellant did not file a post-sentence motion. Thus, any challenge to

the weight of the testimony presented has been waived.            We therefore

examine his claim as a sufficiency of the evidence claim.

      Appellant first challenges the sufficiency of the evidence supporting the

firearms charge. The Commonwealth must prove the following:

      (a) Offense defined.—

            (1) A person who has been convicted of an offense
            enumerated in subsection (b), within or without this
            Commonwealth, regardless of the length of sentence
            or whose conduct meets the criteria in subsection (c)
            shall not possess, use, control, sell, transfer or
            manufacture or obtain a license to possess, use,
            control, sell, transfer or manufacture a firearm in this
            Commonwealth.

18 Pa.C.S. § 6105. The parties stipulated that Appellant had been convicted

of an offense enumerated in subsection (b).            N.T., 6/19/15, at 57.

Therefore, at issue is whether Appellant “possess[ed] . . . a firearm[.]”

Possession of a firearm may be proven by wholly circumstantial evidence.

Commonwealth v. Buford, 101 A.3d 1182, 1189 (Pa.Super. 2014).


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        Appellant’s legal argument assumes that Ms. Mosses’ testimony was

not worthy of belief, and relies upon the favorable testimony given by

Appellant’s brother, Hiram. “Hiram Mosses testified that his brother never

possessed the gun and there was not a firearm in the house.” Appellant’s

brief at 17. However, we are required to view all of the evidence in the light

most favorable to the Commonwealth as verdict winner, and “[p]recedent

forbids us from substituting our judgment of facts for that of the fact-finder.”

Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa.Super. 2014).                      Ms.

Mosses testified that Appellant retrieved a firearm, pointed it at her, and

threatened to blow off her head.           Furthermore, while no explanation was

necessary, the victim supplied an answer as to why Appellant’s brother

possessed the firearm, as she stated that Hiram came upstairs and took the

gun from Appellant during the incident. N.T., 6/19/15, at 14. Hence, the

evidence was plainly sufficient to sustain the firearm charge.

        Appellant’s   next   sufficiency   challenge   is   to   the   simple   assault

conviction.    To establish the crime of simple assault, the Commonwealth

must establish that the actor “attempt[ed] to cause or intentionally,

knowingly or recklessly cause[d] bodily injury to another.”             18 Pa.C.S. §

2701.     Bodily injury is defined as “[i]mpairment of physical condition or

substantial pain.” 18 Pa.C.S. § 2301. Substantial pain may be inferred from

the circumstances surrounding the physical force used. Commonwealth v.

Smith, 848 A.2d 973 (Pa.Super. 2004) (citing Commonwealth v. Ogin,

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540 A.2d 549, 552 (Pa.Super. 1988)). Moreover, “The Commonwealth need

not establish the victim actually suffered bodily injury; rather, it is sufficient

to support a conviction if the Commonwealth establishes an attempt to inflict

bodily injury.”     Commonwealth v. Martuscelli, 54 A.3d 940, 948

(Pa.Super. 2012).     That intent may be shown by circumstances which

reasonably suggest the defendant intended to cause injury. Id.

      Appellant alleges that the prosecution did not introduce medical

records and therefore failed to prove bodily injury. He states that “[t]here is

no evidence that there was any impairment of physical condition or

substantial pain and that there was any intent to do so.” Appellant’s brief at

20. Viewing the evidence in the light most favorable to the Commonwealth,

as we must, the victim testified that Appellant choked her, threw her into

the wall and floor of the room, and pulled out handfuls of her hair. Id. at

12. Ms. Mosses reviewed photographs depicting her injuries, which included

bruising, a black eye, and bald spots where her hair was ripped from the

scalp, and she confirmed that these injuries resulted from Appellant’s attack.

This testimony constitutes direct evidence of bodily injury, and, while the

victim did not directly testify to substantial pain, we find that the

Commonwealth inferentially established substantial pain under these facts.

Additionally, the Commonwealth clearly presented sufficient evidence for the

fact-finder to conclude that Appellant intended to cause bodily injury.




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Therefore, the Commonwealth proved both actual bodily injury and an

attempt to cause bodily injury. No relief is due.

      Appellant’s third issue involves the presentation of prior bad acts

testimony. The alleged error concerns a statement by the victim. During

cross-examination, counsel asked Ms. Mosses multiple questions regarding

Appellant’s affair with another woman, Christina Edwards, suggesting that

the victim was the aggressor and concocted the story of Appellant’s assault.

      Q. Do you know Christina Edwards?

      A. Yes.

      Q. And you knew of her on November 20, 2014?

      A. No.

      Q. You didn't know of her then?

      A. To my knowledge she was no longer in the picture and no
      longer existed. Anytime was he sure he wanted [sic] to be a
      family with myself and our daughter, he convinced me that he
      did. I had no reason to think she was still part of our lives.

      Q. You were aware of the existence prior to November 20?

      A. Yes.

      THE COURT: There is a Court Reporter. She can't take you both
      at the same time.

      Q. You would agree that you knew of her and my client's
      relationship with her before November 20?

      A. Yes.

      Q. And you knew he had dated her?



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     A. Yes.

     Q. And you were in the room on November 20 and you found out
     that my client had impregnated her; is that correct?

N.T., 6/19/15, at 30. Appellant then suggested that Ms. Mosses lied about

the gun. In response, Ms. Mosses, clearly frustrated by the questioning, sua

sponte brought up Appellant’s criminal history.

     Q. You knew about making gun allegations you would get
     immediate response?

     A. It is not an allegation, it is truth. I have no reason to lie.

     THE COURT: Stop, stop. This is not a fight. Ask a question.

     Q. It is the truth that the weapon you are referring to never left
     the waistband of his brother throughout the entire incident?

     A. That is a lie. The gun was never on Hiram. It was in the
     closet. He pulled it out and told me he was going to blow my
     f**king head off in front of my three year old daughter. What
     are you talking about?

     Q. You knew by making a gun allegation things would rise to --

     A. Check your client's wrap [sic] sheet. I don't have to lie on
     him.

     [APPELLANT]: I move for a mistrial.

     THE COURT: No. She had not said something.

Id. at 36-37 (emphasis added).

     Appellant asserts that this vague reference to Appellant’s criminal

history violated Pa.R.E. 404(b). “[Rule] 404(b)(1) provides that evidence of

‘other crimes, wrongs, or acts is not admissible to prove the character of a



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person in order to show conformity therewith.’"        Appellant’s brief at 18.

First, the evidence in question was not admitted by the trial court and

therefore the only issue on appeal is whether the mistrial was improperly

denied.   However: “It has long been held that trial judges, sitting as

factfinders, are presumed to ignore prejudicial evidence in reaching a

verdict.” Commonwealth v. Irwin, 579 A.2d 955, 957 (Pa.Super. 1990).

Since the trial court is presumed to have ignored the improper remark, the

mistrial was properly denied.

      Finally, Appellant argues that the court erred in permitting the

Commonwealth      to   present,   on    cross-examination   of   Hiram   Mosses,

audiotapes for which there was no proper foundation or authentication. Our

review of a trial court's evidentiary rulings applies the following standard.

      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has 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. Mickel, 142 A.3d 870, 874 (Pa.Super. 2016).

      The disputed evidence was as follows. Hiram testified on Appellant’s

behalf and contradicted the victim’s account. On cross, the Commonwealth

asked, “And did you not tell your brother he needs to call [Ms. Mosses] and

tell her to say that none of this happened?” Id. at 78. Hiram denied telling

Appellant to contact his wife.    The Commonwealth then announced that it

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intended to play a prison recording from November 25, 2014.                Id. at 79.

Appellant objected, stating that the information was never provided to him

in discovery. Appellant was granted a brief recess to listen to the tape.

       When the parties reconvened the Commonwealth played the tape,

which was not transcribed by the court reporter.1 Id. at 82. Appellant then

raised an authentication objection.                The trial court permitted more

questioning. Hiram stated that the voices on the tape belonged to Appellant

and one of his other brothers, John or Aaron.                     Following redirect

examination, the trial court specifically stated, “I don’t think it was [Hiram’s]

voice on the phone.” N.T., 7/19/15, at 84.

       We find that Appellant is not entitled to relief.             Obviously, the

Commonwealth’s goal was to impeach Hiram by establishing that he did in

fact tell Appellant to contact the victim. See Pa.R.E. 613(a) (“A witness may

be examined concerning a prior inconsistent statement[.]”). Hiram denied

that he made the statements in question, leading the prosecutor to attempt

to prove the statement through extrinsic evidence.                  “An inconsistent

statement may be proved by getting the witness on the stand to admit

making it. But where, as here, the witness does not admit making the

inconsistent    statement,     it   may    be   proved   by   extrinsic   evidence[.]”
____________________________________________


1
 Both parties agree that the recording contains a male voice suggesting to
Appellant that Appellant call Ms. Mosses to have her say that nothing
happened.



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Commonwealth v. Brown, 448 A.2d 1097, 1103–04 (Pa.Super. 1982);

Pa.R.E. 613(b).

       The relevance of the extrinsic evidence turned on an authentication

issue, as the tape did not otherwise damage Hiram’s credibility. 2        See

Pa.R.E. 901(a) (“To satisfy the requirement of authenticating or identifying

an item of evidence, the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it is.”); Pa.R.E.

104(b) (“When the relevance of evidence depends on whether a fact exists,

proof must be introduced sufficient to support a finding that the fact

existed.”).3

       Since the trial judge explicitly stated that he did not think Hiram’s

voice was on the phone, he determined that the call was not properly

authenticated and was therefore irrelevant to the attempted impeachment.

Furthermore, we presume that the court did not consider the prejudicial
____________________________________________


2
   We disagree with the Commonwealth’s assertion that the evidence was
properly authenticated and admitted because Hiram testified that the voices
on the call belonged to Appellant and another brother. Commonwealth’s
brief at 21. That testimony would indeed authenticate the tape, but then the
authentication is no longer proper, as the tape would have become
irrelevant. The fact that Appellant’s other brothers urged Appellant to
contact the victim does not impeach Hiram’s testimony.
3
  Rule 901(a) is identical to F.R.E. 901(a). The federal rule’s Advisory
Committee Notes to F.R.E. 901(a) states, “This requirement of showing
authenticity or identity falls in the category of relevancy dependent upon
fulfillment of a condition of fact[.]”




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value of this evidence, e.g. as generally discrediting Appellant based on his

brothers’ actions, in reaching its verdict.4 “When, as here, a case is tried to

the court rather than a jury, we will presume that the court applied proper

legal standards.”      Commonwealth v. Hunter, 381 554 A.2d 550, 558

(Pa.Super. 1989) (citation omitted).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2017




____________________________________________


4
  The trial court’s opinion addresses the claim in a manner contradictory to
its trial ruling. “Here, the admission of the prison tapes did not result in a
prejudicial result for the trial. The tapes had the proper foundation and were
authenticated by a witness' testimony. As such, this Court determined that
the tapes should have been admissible as evidence.” Trial Court Opinion,
7/19/16, at 10. We examine this issue in the context of the actual ruling
rendered at trial.



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