J-S63040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
DAMIAN JAMES ESCOBAR,                       :
                                            :
                   Appellant                :        No. 1022 EDA 2015

       Appeal from the Judgment of Sentence entered on March 16, 2015
               in the Court of Common Pleas of Delaware County,
                 Criminal Division, No. CP-23-CR-0007172-2014

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 12, 2015

        Damian James Escobar (“Escobar”) appeals from the judgment of

sentence imposed following his convictions of simple assault and the

summary offense of harassment.1 We affirm.

        At approximately 10:30 p.m. on Friday, March 7, 2014, Tiffany

Escobar (“the Victim”) and Escobar met for drinks after work.2 Both parties

had a few drinks, and the Victim suggested that, rather than drive, they take

a cab home. Escobar became irritated by the suggestion; as a result, the

Victim called her brother to pick her up. The Victim’s brother arrived, and




1
    See 18 Pa.C.S.A. §§ 2701, 2709(a)(1).
2
  Escobar and the Victim were married at the time of the incident. However,
at the time of trial, Escobar had served the Victim with a Complaint in
Divorce.
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after a stop at his apartment, he took the Victim to the apartment that she

and Escobar shared.

      At about 4:30 a.m., Escobar entered their shared apartment and

began screaming at the Victim, who was sleeping on the couch. She stood

up and tried to get away from Escobar, but he blocked her exit, slapped her

across the face, and tried to grab her hair.       The Victim ran from the

apartment and called the police from her cell phone. Police officers arrived,

and the Victim stated she did not wish to press charges. Nevertheless, the

police drove Escobar to the Raven Motel.

      Once in the police vehicle, Escobar began sending text messages to

the Victim, berating her for notifying the police and calling her a “bitch.”

The Victim notified the police and asked them to have him stop texting. The

officers transporting Escobar to the motel ordered Escobar to stop sending

the messages, and he complied.

      A couple of hours later, the Victim awoke from her sleep, to find

Escobar   choking   her   with both hands.      The   choking went on for

approximately one minute and the Victim began to “lose breath.”           She

believed that Escobar was going to kill her. The Victim kicked Escobar, and

was able to escape. With Escobar in pursuit, she ran from the apartment

building to a storefront shop, where the owner allowed her to call the police.

When she returned to the apartment, it had been ransacked, and both

personal property and cash were missing.



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        After a bench trial, Escobar was convicted of simple assault and the

summary offense of harassment.        The trial court sentenced Escobar to 80

hours of community service and one year of probation for the simple assault

conviction, and a fine of $250 for the harassment conviction. Escobar filed a

timely Notice of Appeal and a timely court-ordered Pennsylvania Rule of

Appellate Procedure 1225(b) Concise Statement of Matters Complained of on

Appeal.

        On appeal, Escobar raises the following question for our review:

“Whether the [t]rial [c]ourt erred in finding [Escobar] guilty where there was

insufficient evidence to support the verdict of guilt[y] to simple assault, a

misdemeanor of the second degree[?]” Brief for Appellant at 6.3

        Escobar argues that the evidence was insufficient to support his simple

assault conviction.    Id. at 10.   Escobar asserts that the Commonwealth’s

witness Officer Brian McNeill, the officer who arrived for the second call

stated that, in his professional opinion, the Victim’s claimed condition was

inconsistent with his and another officer’s observations. Id. Esobar points

out that Officer McNeill did not observe any marks on the Victim’s face

where she indicated that she had been slapped, and he did not believe that

the slight redness on her neck was due to any strangling.           Id.   Thus,

Escobar asserts the Commonwealth’s own evidence established reasonable

doubt as to whether the Victim was assaulted. Id. at 12-13.


3
    Escobar does not raise any claims related to his harassment conviction.


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      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether[,] viewing all the evidence admitted at trial
      in the light most favorable to the verdict winner, there is
      sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.         Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      The Crimes Code defines simple assault as an “[attempt] to cause or

intentionally, knowingly or recklessly [causing] bodily injury to another.” 18

Pa.C.S.A. § 2701(a)(1).    Bodily injury is defined as the “[i]mpairment of

physical condition or substantial pain.”   Id. § 2301.   “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. This intent may be shown by circumstances,

which reasonably suggest that a defendant intended to cause injury.”


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Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012)

(citations omitted).

      Here, the Victim testified that Escobar woke her up by screaming at

her. N.T., 3/16/15, at 11. As she attempted to flee the apartment, Escobar

blocked her so that she could not get away, and then he open-hand slapped

her across the face. Id. at 11-12. She testified that he then tried to grab

her hair.   Id. at 12.   The Victim testified that she left the apartment and

called the police because Escobar “has a past of doing this” and she “feared

for her life.” Id. The Victim testified that hours later, she woke up to find

both of Escobar’s hands around her neck, choking her “for probably about a

minute.” Id. at 17-18. She testified that she thought he was going to kill

her, and she gasped for air until she kicked Escobar to get him away. Id. at

18. The Victim testified that Escobar then chased her as she ran out of the

apartment. Id.

      Officer McNeil testified that the Victim had a disheveled look to her,

and she had a slight reddening around her neck. Id. at 49. Officer McNeill

testified he did not know what caused the reddening. Id. He opined that

the reddening did not appear consistent with what he has known to be from

strangulation. Id. He testified that the redness was in the upper chest and

neck area, which was the same area in which the Victim indicated she was

choked. Id.




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      The trial court, sitting as fact finder, found the testimony of the Victim

credible.   Trial Court Opinion, 5/21/15, at 4.           Here, the evidence

demonstrated that the Victim had reddening around her neck in an area

consistent with the area in which the Victim says she was choked.         Thus,

viewed in the light most favorable to the Commonwealth as the verdict

winner, we conclude that there was sufficient evidence for the trial court to

find, beyond a reasonable doubt, that Escobar attempted to cause bodily

injury by choking the Victim. See Commonwealth v. Smith, 97 A.3d 782,

788 (Pa. Super. 2014) (stating that the trial court was free to believe all,

part or none of the evidence presented at trial, and to reject the testimony

of those witnesses it determined were not credible); see also Martuscelli,

54 A.3d at 948. Upon our review of the record, we find no reason to disturb

the findings of the trial court. See Melvin, 103 A.3d at 40. Accordingly, the

evidence is sufficient to sustain Escobar’s conviction for simple assault.4

See Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006)




4
   Escobar’s claim challenging the credibility of the Victim’s testimony, by
using contradicting testimony by Officer McNeill, raises a weight of the
evidence challenge. See Commonwealth v. Griffin, 65 A.3d 932, 938-39
(Pa. Super. 2013) (stating that a challenge to the credibility of a witness’s
testimony “is, therefore, not an attack on the sufficiency of the evidence, but
an allegation regarding the weight it should have been afforded”). However,
Escobar failed to properly preserve a weight of the evidence challenge in the
trial court. See Pa.R.Crim.P. 607. The fact that Escobar raised the claim in
his Pa.R.A.P. 1925(b) Concise Statement does not preserve the claim for our
review. See Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa.
2009).


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(stating that by vigorously and forcefully choking the victim, the defendant

took substantial steps toward inflicting bodily injury).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/12/2015




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