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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               1    IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                           Appellee

                      v.

    KEVIN C. DAVENPORT, JR.

                           Appellant                      No. 296 MDA 2018


        Appeal from the Judgment of Sentence imposed January 2, 2018
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No: CP-21-CR-0001715-2017

BEFORE:     SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                          FILED JANUARY 07, 2019

        Appellant, Kevin   C.   Davenport, Jr., appeals from the judgment of

sentence imposed on January 2, 2018 in the Court of Common Pleas of

Cumberland       County    following   his   conviction     of   simple   assault,

18 Pa.C.S.A. § 2701(a)(1). Appellant contends the evidence was insufficient

to support his conviction and the verdict was against the weight of the

evidence. Upon review, we affirm.

        In its Rule 1925(a) opinion, the trial court summarized the facts of this

case as follows:

        On May 13, 2017, expectant mother, Akeya Brock, entered the
        Carlisle Borough Police Department to report that she had been
        assaulted by [Appellant], her boyfriend. She told Patrolman
        Mayer that [Appellant] held her to the floor face -down after she
        fell in the midst of a heated argument. She stated that while
        [Appellant] held her on the ground, he squeezed her face so hard
        with his hand that her cheeks were gashed inside and out by her
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        teeth and his nails. He also punched her several times. Patrolman
        Mayer took photographs of her injuries, which were later shown
        to the jury.    Ms. Brock provided him with a sworn, written
        statement of the events before leaving the police department.
        [Appellant] was charged with simple assault.

        At trial, the Commonwealth called Ms. Brock as a witness.
        Contrary to her sworn, written statement, she testified that
        [Appellant] had merely helped her up after she fell during an
        argument. She explained that the injuries to her face occurred
        when she resisted his help. She stated that she had blacked out
        when she fell. She could not recall anything until the point where
        his finger was in her mouth and she was biting him. She stated
        that [Appellant] left right after they got up. She then went to her
        grandmother's house. She and her grandmother then went to
        the police department together where she gave her statement to
        Patrolman Mayer.

        In light of Ms. Brock's testimony at trial, the Commonwealth asked
        her to read aloud her sworn statement of May [13], 2017. She
        read from the Commonwealth's Exhibit 1 as follows:

           I came home around 5:30 to our bedroom being trashed.
           Clothes, bed, everything on the-everything on the room
           [sic]. I walked into the living room to ask why he did that.
           He told me to leave him alone. I kept asking why. He
           started to get his coat and walked away, asking where his
           bottle was-where his bottle is, so I followed him into the
           living room continuing to ask why he is acting like he is. He
           slapped me and told me-told me to leave alone-told me
           to leave him alone. He went into the bedroom, and I
           followed him, where I fell. He got on top of me-got on top
           of me on my back and squeezed my cheeks together so hard
           my teeth and his nails-my teeth and his nails cut my cheek.
           He got up, and so did I. I went into the kids' room to ask
           my stepson to get dressed and to not be like his dad. That's
           when [Appellant] came into the bedroom, the kids' room
           and continued to hit me, telling [my stepson] this is how
           you be. He punched me about three times and then left the
           apartment.

        After the trial, the jury deliberated and returned   a   verdict of guilty
        on the charge of simple assault.


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Trial Court Rule 1925(a) Opinion, 5/10/18, at 1-3 (footnotes, including

footnotes with references to notes of testimony, omitted).

        On January 2, 2018, the    trial court sentenced Appellant to   a   term of not

less than six months nor more than twenty-three months in the Cumberland

County Prison, with credit for two days previously served.                  The court

authorized immediate work release and determined Appellant was eligible for

a   reentry plan. After the trial court denied Appellant's post -sentence motion,

Appellant filed   a   timely notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

        In this appeal, Appellant asks us to consider two issues:

        I.    Was the evidence presented at trial sufficient to sustain        a
              conviction for simple assault when the Commonwealth failed
              to  present evidence that [Appellant] intentionally,
              knowingly, or recklessly caused bodily injury to Ms. Brock?

        II.   Was the jury's verdict against the weight of the evidence so
              as to shock one's sense of justice when Ms. Brock testified
              that she was not assaulted by [Appellant]?

Appellant's Brief at 5.

        In his first issue, Appellant argues the evidence was insufficient to

support his conviction of simple assault. Our Supreme Court has explained:

        [T]he critical inquiry on review of the sufficiency of the evidence
        to support a criminal conviction     . does not require a court to
                                                 .   .


        ask itself whether it believes that the evidence at the trial
        established guilt beyond a reasonable doubt. Instead, it must
        determine simply whether the evidence believed by the fact -finder
        was sufficient to support the verdict.




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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36                        (Pa. 2007) (emphasis

in   original) (citations and quotation marks omitted). "When reviewing the

sufficiency of the evidence, an appellate court must determine whether the

evidence, and all reasonable inferences deducible from that, viewed in the

light most favorable to the Commonwealth as verdict winner, are sufficient to

establish all of the elements of the offense beyond              a   reasonable doubt."     Id.
at 1237 (citation omitted).

        By definition, a person is guilty of simple assault if he "attempts to cause

or intentionally, knowingly or recklessly causes bodily injury to another."

18 Pa.C.S.A. § 2701(a)(1).             The gist of Appellant's sufficiency argument is

that the evidence did not support            a   finding that Ms. Brock sustained "bodily

injury" as that term         is   defined in 18 Pa.C.S.A.   §   2301, i.e., "impairment of

physical condition or substantial pain."

        Appellant fails to appreciate that simple assault does not require actual

bodily injury.   "It   is   well -settled that   '[t]he Commonwealth        need not establish

that 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. Duck, 171 A.3d 830, 835 n.4 (Pa. Super. 2017)

(quoting Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super.

1994) (citations omitted)).

        The trial court properly charged the            jury    on the elements of simple

assault, instructing:


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        There are two possible ways of committing a simple assault. One
        is to attempt to cause bodily injury and one is actually causing
        bodily injury. So, either one of those, if you find that he did either
        one of those beyond a reasonable doubt, then you may find him
        guilty. If you do not find that either one was proven beyond a
        reasonable doubt, then you must find him not guilty.

Notes of Testimony, Trial, 10/31/17, at 38.

        The trial court determined that the      jury could "reasonably infer from the
victim's statement that [Appellant's] actions toward her amounted to an

intentional attempt to cause bodily injury." Trial Court Rule 1925(a) Opinion,

5/10/18, at 4.        Viewing the evidence in the light most favorable to the

Commonwealth, we find the evidence was sufficient for the jury, as fact finder,

to reach that conclusion.

        In support of his position, Appellant relies on Commonwealth v.

Kirkwood, 520 A.2d 451         (Pa. Super. 1987), in which this Court determined

that the evidence was insufficient to support         a   simple assault conviction. In

Kirkwood, the victim claimed         she was injured by Kirkwood's aggressive

dancing. We determined that the victim's bruises and slight cuts on her arms

and knees did not constitute sufficient bodily injury to sustain       a   simple assault

conviction because "temporary aches and pains brought about by strenuous,

even violent, dancing are an inadequate basis for imposing criminal liability

upon    a   dance partner for assault."   Id. at 454.
        We find the facts of the case before us dissimilar to those in        Kirkwood
and more like those in       Duck, where     a   verbal argument also turned into      a




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physical altercation. There, the victim sustained lacerations to his head and

arm. In Duck, we determined:

        Viewing the evidence in the light most favorable to the
        Commonwealth, as verdict winner, the victim in the instant case
        did not suffer a "temporary hurt" resulting from a "trivial contact"
        as occurred in Kirkwood. Rather, the victim suffered a visible
        injury to his head as a result of being pushed "really hard" or
        "slammed to the floor" during a verbal argument. It cannot be
        viewed in any sense as "trivial" social contact as was the, albeit
        aggressive, dancing in Kirkwood.

Duck, 171 A.3d at 837.

        Finding the evidence sufficient to support Appellant's conviction, the trial

court observed:

        In the instant case, the Commonwealth's exhibits, including the
        victim's sworn statement and photographs, were sufficient to
        sustain the conviction. The jury could reasonably infer that the
        injuries shown in the pictures caused the victim substantial pain.
        It could also reasonably infer from the victim's statement that
        [Appellant's] actions toward her amounted to an intentional
        attempt to cause bodily injury.

Trial Court Rule 1925(a) Opinion, 5/10/18, at 3-4.

        Whether based on the attempt to cause bodily injury or on the actual

infliction of bodily injury, we conclude, as did the trial court, the evidence was

sufficient to support the simple assault conviction. Appellant's first issue fails.

        Appellant next argues that the verdict was against the weight of the

evidence. Our Supreme Court has explained:

        A motion   for a new trial based on a claim that the verdict is against
        the weight of the evidence is addressed to the discretion of the
        trial court. Commonwealth v. Widmer, 560 Pa. 308,319,744
        A.2d 745,751-52 (2000); Commonwealth v. Brown, 538 Pa.
        410,435,648 A.2d 1177,1189 (1994). A new trial should not be

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        granted because of a mere conflict in the testimony or because
        the judge on the same facts would have arrived at a different
        conclusion. Widmer, 560 Pa. at 319-20, 744 A.2d at 752.
        Rather, "the role of the trial judge is to determine that
        'notwithstanding all the facts, 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.' Id. at 320, 744 A.2d at 752 (citation
        omitted). It has often been stated that "a new trial should be
        awarded when the jury's verdict is so contrary to the evidence as
        to shock one's sense of justice and the award of a new trial is
        imperative so that right may be given another opportunity to
        prevail." Brown, 538 Pa. at 435, 648 A.2d at 1189.
        An appellate court's standard of review when presented with a
        weight of the evidence claim   is   distinct from the standard of review
        applied by the trial court:
           Appellate review of a weight claim is a review of the exercise
           of discretion, not of the underlying question of whether the
           verdict is against the weight of the evidence. Brown, 648
           A.2d at 1189.       Because the trial judge has had the
           opportunity to hear and see the evidence presented, an
           appellate court will give the gravest consideration to the
           findings and reasons advanced by the trial judge when
           reviewing a trial court's determination that the verdict is
           against the weight of the evidence. Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One
           of the least assailable reasons for granting or denying a new
           trial is the lower court's conviction that the verdict was or
           was not against the weight of the evidence and that a new
           trial should be granted in the interest of justice.

        Widmer, 560    Pa.   at 321-22, 744 A.2d at 753 (emphasis added).

        This does not mean that the exercise of discretion by the trial court
        in granting or denying a motion for a new trial based on a
        challenge to the weight of the evidence is unfettered.             In
        describing the limits of a trial court's discretion, we have
        explained:

           The term "discretion" imports the exercise of judgment,
           wisdom and skill so as to reach a dispassionate conclusion
           within the framework of the law, and is not exercised for the
           purpose of giving effect to the will of the judge. Discretion
           must be exercised on the foundation of reason, as opposed

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           to prejudice, personal motivations, caprice or arbitrary
           actions. Discretion is abused where the course pursued
           represents not merely an error of judgment, but where the
           judgment is manifestly unreasonable or where the law is not
           applied or where the record shows that the action is a result
           of partiality, prejudice, bias or ill -will.

        Widmer, 560     at 322, 744 A.2d at 753 (quoting Coker v. S.M.
                      Pa.
        Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85
        (1993)).

Commonwealth v. Clay, 64 A/3d 1049, 1054-55           (Pa. 2013).

        In rejecting Appellant's weight of the evidence claim, the trial court

explained:

        When passing on the credibility of the witnesses in this case, the
        jury was free to accept all, some, or none of the testimony
        presented. Concerning Ms. Brock, she gave two versions of the
        events. The jury was free to choose between the sworn statement
        Ms. Brock made to the police on the day of the offense and her
        statements made at trial. Clearly, the jury chose to believe that
        Ms. Brock was truthful in her sworn statement to Patrolman
        Mayer. In the same vein, it chose not to believe her statements
        at trial that she was hurt accidentally.

        The fact that the jury chose to believe the sworn statements of
        Ms. Brock at trial does not require a finding that the conviction
        was against the weight of the evidence. [Appellant's] conviction,
        based on the evidence at trial, did not shock our sense of justice.

Trial Court Rule 1925(a) Opinion, 5/10/18, at 5.1




1 We note that Ms. Brock's written statement was properly considered by the
jury. As our Supreme Court has recognized, a prior inconsistent statement
may be used as substantive evidence if the statement had been reduced to a
writing signed and adopted by the witness. See Commonwealth v. Brown,
52 A.3d 1139, 1154 (Pa. 2012) (citing Commonwealth v. Lively, 610 A.2d
7, 10 (Pa. 1992)).
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        We find no abuse of discretion         in the   trial court's determination.

Appellant   is   not entitled to relief on his weight of the evidence claim.

        Judgment of sentence affirmed.



Judgment Entered.




J seph D. Seletyn,
Prothonotary
Date: 1/7/2019




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