J-S08018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RANDY JOSEPH SIMMONS,

                            Appellant                 No. 803 WDA 2017


          Appeal from the Judgment of Sentence, February 14, 2017,
             in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0011447-2016


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.                            FILED APRIL 06, 2018

       Randy Simmons, appeals from the judgment of sentence entered after

a bench trial.     The trial court convicted Simmons of theft, simple assault,

and recklessly endangering another person.1 After careful review, we affirm.

       The trial court recounted the trial testimony as follows:

             On August 12, 2016 at approximately 11:00 p.m. Michael
       Sudduth (“Sudduth”) was in his apartment when [Simmons]
       arrived. Sudduth knew [Simmons] well, as he and [Simmons]
       had been friends for approximately five (5) years, and
       [Simmons] had lived with him for a period of time preceding this
       incident.   When [Simmons] entered Sudduth’s apartment,
       [Simmons] stated “give me your money.”          When Sudduth
       refused, [Simmons] struck him in the jaw. [Simmons] again
____________________________________________


1 18 Pa.C.S. §§ 3921(a), 2701(a), and 2705, respectively. Simmons was
originally charged with more serious crimes but the court only convicted him
of these lesser offenses.


*Former Justice specially assigned to the Superior Court.
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       demanded money, and Sudduth refused.           [Simmons] again
       struck Sudduth, and began to rifle through his pockets. Sudduth
       indicated that he was in a daze and left his apartment. One of
       the neighbors called the police.      When the police arrived,
       Sudduth was sitting on a bench in the lobby of his apartment
       building.    According to Brackenridge Borough Police Officer
       Justice McIntyre, Sudduth appeared to have a severe injury to
       the left side of his face.       Sudduth immediately identified
       [Simmons] as the person who injured him. Sudduth was then
       transported to the hospital where he was diagnosed with a brain
       hemorrhage, broken jaw and multiple facial fractures. Sudduth
       does not have any permanent injuries or loss of function. While
       Sudduth admitted that he had consumed alcohol, he credibly
       testified that he was not drunk.

Trial Court Opinion, 8/24/17, at 3-4 (citations of testimony omitted).

       On February 14, 2017, the trial court convicted Simmons of the above

charges.2      That same day, the trial court sentenced Simmons to an

aggregate term of 9 to 18 months of incarceration followed by four years of

probation.     Simmons filed a post-sentence motion, which the trial court

denied on May 2, 2017. This timely appeal followed. Both Simmons and the

trial court have complied with Pa.R.A.P. 1925.

       Simmons raises one issue on appeal:


       1. Was the verdict of this case against the weight of the evidence?




____________________________________________


2 The trial judge acquitted Appellant of one count Robbery – inflict serious
bodily injury (18 Pa.C.S.A. § 3701(a)(1)(i)), aggravated assault (18
Pa.C.S.A. § 2702(a)(a)), and theft by unlawful taking (18 Pa.C.S.A. § 2705).



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     Simmons contends that the verdict was so contrary to the evidence

that it “shock[ed] one’s sense of justice” and, as such, we must award him a

new trial. Simmons’ Brief at 15.

     Our Supreme Court has held:

     [a] verdict is against the weight of the evidence only when the
     jury's verdict is so contrary to the evidence as to shock one's
     sense of justice. It is well established that a weight of the
     evidence claim is addressed to the discretion of the trial court. A
     new trial should not be granted because of a mere conflict in the
     testimony or because the judge on the same facts would have
     arrived at a different conclusion. Rather, the role of the trial
     court is to determine that notwithstanding all the evidence,
     certain facts are so clearly of greater weight that to ignore them,
     or to give them equal weight with all the facts, is to deny justice.
     A motion for a new trial on the grounds that the verdict is
     contrary to the weight of the evidence concedes that there is
     sufficient evidence to sustain the verdict; thus the trial court is
     under no obligation to view the evidence in the light most
     favorable to the verdict winner.

           Significantly, in a challenge to the weight of the evidence,
     the function of an appellate court on appeal is to review the trial
     court's exercise of discretion based upon a review of the record,
     rather than to consider de novo the underlying question of the
     weight of the evidence. 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. It is for this reason that the trial
     court's denial of a motion for a new trial based on a weight of
     the evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

quotations and citations omitted).

     Simmons argues that the verdict was “manifestly unreasonable” in

light of the evidence presented. Simmons’ Brief at 13. First, he notes that


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many pre-trial statements made by Sudduth contradicted his testimony at

trial.    For instance, Sudduth initially stated that his wallet was stolen, but

later he found it.     Sudduth also thought that Simmons had taken his cell

phone, but discovered he had not.          Sudduth stated that his cell phone

battery was stolen, but found it in his apartment several days later.

Additionally, Simmons argues that Sudduth had several beers that day,

there was no physical evidence presented linking Simmons to the crime, and

the police investigation, as characterized by Simmons, was “haphazard.” For

these reasons, Simmons argues his conviction was manifestly unreasonable.

         The trial court determined that “there were no credible facts of record

to give greater weight such that [the trial court’s] verdict would be against

the weight of the evidence.” Trial Court Opinion, 4/24/17, at 5. This Court

may not weigh the evidence and substitute our judgment for that of the fact-

finder.     See Commonwealth v. Vetrini, 734 A.2d 404, 407 (Pa. Super.

1999).

         In finding Simmons guilty, the trial judge clearly believed Sudduth’s

testimony was credible, while finding that Simmons’s testimony “utterly

lacked credibility.”    Trial Court Opinion, 4/24/17, at 4-5.   It was the fact

finder’s duty – in this case, the trial court – to resolve contradictions in Mr.

Sudduth’s testimony, and to evaluate the testimony of both Sudduth and

Simmons for credibility.      River, supra.   Because the evidence presented

was not “tenuous, vague and uncertain,” the trial court did not abuse its


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discretion in denying Simmons’ post-sentence motion for a new trial.   We

therefore affirm Simmons’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2018




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