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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
TERESA JOHNSON,                          :         No. 1720 EDA 2016
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, May 6, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0001076-2015


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 11, 2017

        Teresa Johnson appeals from the judgment of sentence of May 6,

2016, following her convictions of one count each of aggravated assault,

simple assault, possession of an instrument of a crime (“PIC”), and

recklessly endangering another person (“REAP”).1 We affirm.

        The Honorable Daniel J. Anders, sitting as finder-of-fact in this

non-jury case, has aptly summarized the facts as follows:

              1.   [Appellant] assaulted Tammy Webb causing
              serious injury to her face and eye

                    On January 25, 2015, Tammy Webb lived at
              308 West Westcomb Street in Philadelphia.
              [Appellant] and her daughters Ranesha Johnson
              (“Ranesha”) and Jasmine Johnson (“Jasmine”) lived
              next    to   Webb   at   310   West   Westcomb
              Street.[Footnote 1]  At 7:30[ a.m.], Webb was

1
    18 Pa.C.S.A. §§ 2702(a)(1), 2701(a), 907(a), and 2705, respectively.
J. S53045/17


          standing in her doorway when she observed Ranesha
          drive into a parking spot in front of her house. As
          Ranesha parked her vehicle, she scraped the vehicle
          of another neighbor. [Appellant] came out of her
          house and entered Ranesha’s truck. Ranesha then
          drove off with [appellant].

               [Footnote 1] Ranesha Johnson and
               Jasmine Johnson were co-defendants in
               a matter that involved an altercation with
               Tammy Webb for which [appellant]
               Teresa Johnson was not charged. That
               matter was consolidated for trial along
               with   a    separate   matter     involving
               [appellant]    Teresa     Johnson      and
               Tammy Webb. Following the waiver trial
               on both matters, the trial court entered a
               verdict of not guilty on all charges
               against      Ranesha     Johnson       and
               Jasmine Johnson.

                 A few minutes after Ranesha and [appellant]
          left in their truck, Webb walked to her neighbor’s
          house to let him know that Ranesha had scratched
          his vehicle with her truck. When she returned from
          talking to her neighbor, Webb observed Jasmine
          coming out of her house. As Webb started to walk
          up the steps to her own house, Jasmine came down
          her steps and put her hands in Webb’s face. In
          response, Webb put her hands in Jasmine’s face. A
          fight between Webb and Jasmine ensued. The fight
          ended after Webb’s dogs came out of her house and
          went after Jasmine without biting her. Webb called
          911 to report the altercation between her and
          Jasmine.

                Fifteen minutes after calling 911, Webb
          observed [appellant] and Ranesha return to the
          block in Ranesha’s truck. Ranesha jumped out of the
          truck and ran over to Webb’s property. Ranesha
          kicked Webb’s screen door and broke it. Ranesha
          also had a foot long brick in her hands. [Appellant]
          remained on the street as Ranesha ran onto Webb’s
          steps and broke her screen door.


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                Eventually Philadelphia police officers arrived
          at Webb’s house. The police officers took a report of
          the incident and instructed Webb to obtain a
          restraining order against [appellant], Ranesha and
          Jasmine. Webb went back inside her house to get
          dressed in order to go to 1501 Arch Street to obtain
          a restraining order. As Webb left her house to go to
          1501 Arch Street, Ranesha was on her step waiting
          for Webb. Ranesha and Webb exchanged words, and
          then Ranesha attacked Webb from behind. When
          Ranesha attacked Webb, [appellant] was standing on
          the sidewalk. As Ranesha was fighting with Webb
          and punching her with a closed fist, Jasmine jumped
          out of [appellant]’s truck and joined the fight. At
          this point, both Jasmine and Ranesha were punching
          Webb with closed fists. Webb was swinging back at
          Jasmine and Ranesha to defend herself.

                Jasmine and Ranesha stopped fighting with
          Webb only when Webb’s daughter sprayed both of
          them with pepper spray.         Webb then put her
          daughter into her car and told her son to get into the
          car. On cross-examination, Webb agreed that “there
          was a little bit of quiet” while she picked up her
          pocketbook and put her daughter into the car. As
          Webb’s family was ready to leave for 1501 Arch
          Street, [appellant] yelled to Webb’s daughter, “Lexis,
          we got something for you.”          Webb’s son was
          standing between [appellant] and Webb. Unable to
          get to Webb because Webb’s son was blocking her,
          [appellant] removed wooden, horizontal blinds that
          were in a nearby trashcan and stabbed Webb in the
          face with the blinds.      When she stabbed Webb,
          [appellant] held the blinds with both hands and
          struck them in Webb’s eye in a “jabbing motion
          downward.” Although not noted in the transcript,
          the trial court recalls that the jabbing motion
          demonstrated by Webb was very quick and
          forceful.[Footnote 2]

                [Footnote 2] In the main, Webb’s
                daughter     Alexis  Webb      testified
                consistently with Webb’s description of


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                how [appellant] struck Webb with the
                blinds including that Ranesha’s and
                Jasmine’s fight with Webb was over
                when [appellant] struck Webb in the eye
                with the blinds.

                 The same police officers who responded to the
          first 911 call also responded to the second 911 call
          following Webb’s injury. Webb was taken to Einstein
          Hospital where she received treatment for her
          injuries. Webb had emergency surgery to remove
          portions of the blinds that had broken off and were
          deeply embedded in her face and eye.             Webb
          received 20 stitches. Webb’s eye was so swollen
          that she could not see out of it for two weeks. Webb
          later received plastic surgery to address her injuries
          but still has a permanent scar above the eyebrow.
          Copies of Webb’s injuries are collectively attached as
          Exhibit A.

                During her interaction with [appellant],
          Jasmine and Ranesha, Webb never threatened them
          and did not have a weapon. Webb also testified that
          neither her son nor her daughter threatened
          [appellant], Jasmine or Ranesha and that neither of
          them had a weapon. On cross-examination, Webb
          denied that her son ever touched Jasmine including
          that her son threw Jasmine into a trash can.

          2. [Appellant]’s Testimony At Trial

                In relevant part, [appellant] testified that after
          Webb’s daughter sprayed Jasmine and Ranesha with
          pepper spray, Webb yelled to [appellant], “That’s
          what you B’s get. Y’all belong in the trash. Y’all
          going to die. I’m going to burn up the house and kill
          everybody in it.” In response, [appellant] told Webb
          that “her crackhead husband wasn’t going to do
          anything to us.” [Appellant] further testified that --
          although Webb’s son was trying to restrain Webb --
          he was unable to prevent Webb from charging at
          [appellant]. In order to defend herself, [appellant]
          reached into a nearby trash can and grabbed blinds
          and “tossed” it at Webb. On cross-examination by


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            the prosecutor, [appellant] testified that she “threw”
            the blinds at Webb.        The prosecutor described
            [appellant]’s reenactment of her throwing of the
            blinds as a “light throwing motion.”

                  As part of [appellant]’s evidence, all parties
            stipulated that [appellant] has a reputation for being
            law-abiding, peaceful and non-violent.

            3. [Appellant]’s 911 call to police

                   At trial, the prosecutor played a 911 call made
            by [appellant] to the police. In that telephone call,
            [appellant] states: “My neighbor just jumped my
            daughter.      My daughter was just jumped three
            times. . . . I am on my way home now. I have been
            calling about this woman. Yes. And I will, and I’m
            going to f[] her up when I get there.”

            4. Trial Court’s Credibility Determination

                  The trial court credited Webb’s testimony,
            including that [appellant] jabbed Webb with the
            blinds with both hands and so hard that portions of
            the blinds broke off and embedded in Webb’s eye
            and face. The trial court credited Webb’s testimony
            based upon her demeanor, her manner of testifying,
            the consistency of her testimony, and the medical
            evidence of her injuries.

Trial court opinion, 11/18/16 at 1-4 (citations to the transcripts omitted).

      On December 18, 2015, following a bench trial, appellant was found

guilty of the above offenses. A bifurcated sentencing hearing was held on

February 19, 2016 and May 6, 2016. Appellant was sentenced to 11½ to

23 months’ incarceration for aggravated assault, with immediate parole,

followed by 2 years of reporting probation. Appellant also received 4 years

of probation for PIC and 2 years of probation for REAP. The charge of simple



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assault merged.       All of appellant’s probationary sentences were run

concurrently for an aggregate sentence of 11½ to 23 months’ incarceration,

with immediate parole, followed by 4 years’ probation.2      No post-sentence

motions were filed. This timely appeal followed on June 4, 2016. Appellant

complied with Pa.R.A.P. 1925(b), and the trial court has filed an opinion.

      Appellant has raised the following issues for this court’s review:

            (1)    Whether the evidence was sufficient to convict
                   the Appellant of Aggravated Assault F1 where
                   her only action was a reasonable reaction to
                   being approached by the [sic] Webb who had
                   engaged     in    multiple    altercations with
                   Appellant’s daughters on the same morning of
                   the incident, where Webb was extremely
                   combative, where the Appellant remained at all
                   times during all altercations on the pavement
                   or in the street, and where the [sic] Webb
                   stated in her “911” call, “that’s what I wanted
                   to happen[.”]          (Specifically track 16,
                   Exhibit D15 at trial)?

            (2)    Whether the verdicts were against the weight
                   of the evidence when the [sic] Webb was
                   clearly the aggressor, attacking Appellant’s
                   daughters,   constantly   approaching    the
                   daughters, and refused to either enter her
                   house and remain, or to avoid confrontation
                   which resulted in a verdict contrary to the
                   evidence and [which] shocks one’s sense of
                   justice?

Appellant’s brief at 4.




2
  Appellant’s sentence was below the mitigated range of the sentencing
guidelines. (Notes of testimony, 5/6/16 at 13.)


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      In her first issue on appeal, appellant challenges the sufficiency of the

evidence to support her conviction of aggravated assault.        According to

appellant, the Commonwealth failed to prove intent to cause serious bodily

injury to Webb.   Appellant also argues that Webb was the aggressor and

charged at her.    Appellant claims that she was simply trying to defend

herself.

            We review Appellant’s challenge to the sufficiency of
            the evidence under the following, well-settled
            standard of review:

                  A claim challenging the sufficiency of the
                  evidence presents a question of law.
                  Commonwealth v. Widmer, 560 Pa.
                  308, 744 A.2d 745, 751 (2000). We
                  must determine “whether the evidence is
                  sufficient to prove every element of the
                  crime beyond a reasonable doubt.”
                  Commonwealth v. Hughes, 521 Pa.
                  423, 555 A.2d 1264, 1267 (1989). We
                  “must view evidence in the light most
                  favorable to the Commonwealth as the
                  verdict winner, and accept as true all
                  evidence and all reasonable inferences
                  therefrom upon which, if believed, the
                  fact finder properly could have based its
                  verdict.” Id.

            Our Supreme Court has instructed:

                  [T]he      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.


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                   Moreover, in applying the above test, the
                   entire record must be evaluated and all
                   evidence actually received must be
                   considered. Finally, the trier 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.
                   Ratsamy, 594 Pa. 176, 934 A.2d 1233,
                   1236 n. 2 (2007).

Commonwealth v. Fortune, 68 A.3d 980, 983-984 (Pa.Super. 2013)

(en banc),     appeal    denied,    78   A.3d    1089        (Pa.   2013),   quoting

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013).

     Appellant was convicted of aggravated assault under 18 Pa.C.S.A.

§ 2702(a)(1), which provides as follows:

             (a)   Offense defined.--A person           is    guilty   of
                   aggravated assault if he:

                   (1)   attempts to cause serious bodily
                         injury to another, or causes such
                         injury intentionally, knowingly or
                         recklessly   under    circumstances
                         manifesting extreme indifference to
                         the value of human life[.]

18 Pa.C.S.A. § 2702(a)(1).     “Serious bodily injury” is defined as “[b]odily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S.A. § 2301.

     Here, Webb had emergency surgery to remove pieces of the window

blinds that were embedded in her face.        She received 20 stitches.        (Trial

court opinion, 11/18/16 at 3.) Webb’s eye was swollen shut for 2 weeks.


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(Id.)    Webb had plastic surgery to repair the damage but still has a

permanent scar above her eyebrow. (Id.) This was sufficient to prove that

Webb actually sustained serious bodily injury; therefore, the Commonwealth

was not required to prove specific intent, only that appellant acted at least

recklessly. See Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa.Super.

1997) (“[W]here the victim suffers serious bodily injury, the Commonwealth

need not prove specific intent.       The Commonwealth need only prove

appellant acted recklessly under circumstances manifesting an extreme

indifference to the value of human life.” (citations omitted)).

        Appellant made a 911 call shortly before the incident, threatening

Webb. (Notes of testimony, 12/10/15 at 129-131.) Later, after Webb had

stopped fighting with appellant’s daughters and was preparing to leave,

appellant shouted, “Lexis, we got something for you,” referring to Webb’s

daughter Alexis. Appellant then grabbed wooden blinds from a trashcan and

stabbed Webb forcefully in the face and eye with a “jabbing motion.” (Id. at

34-39, 86-90, 123-124.) Appellant jabbed Webb so hard with the wooden

blinds that pieces of them broke off and had to be surgically removed from

her eye and face. The trial court, sitting as fact-finder in this non-jury case,

found Webb’s description of the incident to be credible. (Trial court opinion,

11/18/16 at 7.) The trial court did not find appellant’s testimony that she

merely “lightly tossed” the blinds at Webb to be credible. (Id.)




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        Furthermore, appellant’s argument that Webb was the aggressor and

that appellant was defending herself and her daughters relies on appellant’s

own self-serving account of the incident which the trial court found

unbelievable.     Such credibility determinations are within the exclusive

province of the fact-finder, in this case the trial court, and will not be

disturbed on appeal.      Examining all of the evidence in the light most

favorable to the verdict winner, the Commonwealth, it was clearly sufficient

to sustain appellant’s conviction of aggravated assault under 18 Pa.C.S.A.

§ 2702(a)(1).

        Next, appellant challenges the weight of the evidence. However, from

our review of the record, appellant failed to properly raise this issue in the

trial   court.      Accordingly,   appellant’s   weight   claim   is     waived.

Pa.R.Crim.P. 607(A); Commonwealth v. Lofton, 57 A.3d 1270, 1273

(Pa.Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013) (“[A] weight of

the evidence claim must be preserved either in a post-sentence motion, by a

written motion before sentencing, or orally prior to sentencing.       Failure to

properly preserve the claim will result in waiver, even if the trial court

addresses the issue in its opinion.” (citations omitted)); Commonwealth v.

O’Bidos, 849 A.2d 243, 252 (Pa.Super. 2004), appeal denied, 860 A.2d

123 (Pa. 2004) (weight of the evidence claims must be raised via oral,

written, or post-sentence motions in the trial court for the issue to be

preserved for appeal (citations omitted)).       See also Pa.R.A.P. 302(a)



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(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).

        Nor has appellant complied with Pa.R.A.P. 2117(c), stating how this

issue    was properly raised and preserved in the           trial court.    See

Commonwealth v. Baker, 963 A.2d 495, 502 n.5 (Pa.Super. 2008),

appeal denied, 992 A.2d 885 (Pa. 2010) (“If an appellant has properly

preserved an issue for appellate review, the appellant must include in his or

her brief a ‘statement of the case’ including a ‘statement of place of raising

or preservation of issues.’ Pa.R.A.P. 2117(c). This information must also be

referenced     in   the   argument     portion   of   the     appellate    brief.

Pa.R.A.P. 2119(e).”). Furthermore, “it is not the responsibility of this Court

to scour the record to prove that an appellant has raised an issue before the

trial court, thereby preserving it for appellate review.”      Id. at 502 n.6

(citations omitted).

        The record indicates that at the February 19, 2016 bifurcated

sentencing hearing, appellant did present a motion for extraordinary relief,

which was denied “without prejudice in filing an appropriate post-sentence

motion that raises issues regarding the weight and the sufficiency of the

evidence because there’s no basis for an extraordinary relief.”       (Notes of

testimony, 2/19/16 at 15.)     The trial court explained that a weight of the

evidence challenge should not be brought in a post-trial motion for

extraordinary relief: “Motions for extraordinary relief are for extraordinary



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circumstances only. It’s where an error of law has been made where there’s

some fundamental miscarriage, not a weight of the evidence claim, which is

what you’re attempting to make, or even a mere sufficiency of the

[evidence] claim.”   (Id. at 13.)   “So the motion for extraordinary relief is

denied without prejudice for you to refile an appropriate post-sentence

motion once we go through with sentencing.” (Id. at 16.)3 Appellant did

not file any post-sentence motions.

      We also observe that appellant’s “argument” on the weight claim is

limited to the following sentence (not including recitation of the standard of

review, conclusory statements of law, etc.):          “Absence [sic] physical

evidence when reviewed with the nature of [the] injuries, the Appellant was

not attempting to kill the [sic] Webb.” (Appellant’s brief at 24.)

      This is the extent of appellant’s argument on the matter. Of course,

appellant was not charged with attempted murder, she was charged with

aggravated assault, which does not require a showing of specific intent to

kill; also, as described thoroughly above, Webb suffered severe and

permanent injuries. So, even appellant’s one-sentence argument makes no



3
  See Commonwealth v. Grohowski, 980 A.2d 113, 115-116 (Pa.Super.
2009) (“[Pa.R.Crim.P.] Rule 704(B) is intended to allow the trial judge the
opportunity to address only those errors so manifest that immediate relief is
essential. This Court has repeatedly held that ‘we will not allow such
motions as a ‘substitute vehicle’ for raising a matter that should be raised in
a post-sentence motion.’”), quoting Commonwealth v. Askew, 907 A.2d
624, 627 (Pa.Super. 2006), appeal denied, 919 A.2d 954 (Pa. 2007)
(citation omitted).


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sense in context of the record. Appellant’s complete failure to develop any

meaningful argument on the matter would result in waiver, even if the issue

were    otherwise   preserved   for    appeal.   See    Commonwealth        v.

Murchinson, 899 A.2d 1159 (Pa.Super. 2006) (appellant failed to develop

meaningful argument with specific reference to the record to support his

claims on appeal that the evidence was insufficient to support his convictions

and, thus, waived review of the claims, where appellant recited boilerplate

law and then simply asserted that the evidence at trial fell short of such

law); Pa.R.A.P. 2119(a).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2017




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