J-S51013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

EDDIE J. HARDISON,

                        Appellant                   No. 100 MDA 2014


   Appeal from the Judgment of Sentence entered on December 20, 2013
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0001142-2013


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 20, 2014

      Eddie J. Hardison appeals from the December 20, 2013 judgment of

sentence of one to two years imprisonment imposed after a jury convicted

him of simple assault. For the reasons set forth below, we affirm.



with Appellant. On November 17, 2012, she agreed to give Appellant a ride

home from Shenandoah, Pennsylvania, to his home in Pottsville.         N.T.,

10/22/13, at 15-16. At the time of the incident, Appellant had attained the

level of blue belt in an unspecified martial art and was licensed by the



fighter.   Id                                                   esidence, he



recalcitrance, the victim began driving to the local police station for
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assistance. While she was driving, Appellant grabbed the wheel and jerked

the vehicle toward the curb.    The vehicle came to rest in a perpendicular

position in the roadway.

      The victim then shoved Appellant away from the wheel and Appellant

began punching her in the face with a closed fist. Id. at 16. This assault

lasted approximately five minutes. Id. When the assault ended, Appellant

                                                                Id. at 20.

      Shortly thereafter, Pottsville City Police Officer Kirk Becker arrived at

the scene.    N.T., 10/22/13, at 33.       He witnessed the vehicle in its

perpen                                                                 Id. He

testified at trial that the victim sought medical treatment after the incident.

Id.   She suffered seven fractured facial bones, including her orbital and

cheek bones, bruising, permanent numbness, and blurred vision. Id. at 16-



Id. at 18.

      A jury trial convened on October 22, 2013.            The Commonwealth

adduced the foregoing evidence of the assault and the victim

Appellant presented alibi testimony from Tiffany Kovalusky who claimed she

had been with Appellant at the time of the assault. On cross examination,

however, Ms. Kovalusky conceded she was unsure of the exact date that

they had been together. Id. at 44-47. At the conclusion of the trial, the

jury found Appellant guilty of simple assault. Id. at 85.


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       During the sentencing proceeding, Appellant made an oral motion for

extraordinary relief.     While Appellant did not challenge the weight of the

evidence or flush out the substance of his position, in denying the motion,



mean, the jury believed the victim, so you were convicted based on the

evidence that was presented. I mean, you testified and the victim testified,




appeal followed the imposition of one to two years imprisonment.1

       Acting pro se, Appellant filed correspondence with the trial court

requesting post-sentence relief. As Appellant was represented by counsel,

the trial court did not confront the merits of the request.        Instead, it

accepted the correspondence pursuant to Pa.R.Crim.P. 576 and forwarded

the documents to counsel.          A counseled post-sentence motion was never

filed. Appellant filed a concise statement of errors complained of on appeal



____________________________________________


1
    We note the following. Acting pro se on December 31, 2013, Appellant
filed a PCRA petition. Unaware that Appellant was still represented by trial
counsel, the PCRA court appointed PCRA counsel on January 9, 2014. That
petition was dismissed. On January 14, 2014, trial counsel filed the present,
timely direct appeal f
As Appellant was represented by trial counsel when he purported to file his
pro se PCRA petition, that filing was a legal nullity. See Commonwealth v.
Figueroa
Appellant, the pro se [post-



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verdic

2/7/14, at unnumbered page one.         The trial court issued a Rule 1925(a)



evidence supporting his conviction. However, in addressing that claim, the

trial court noted that it was up to the jury to determine the credibility of the

witnesses and that the jury clearly believed the victim and her corroborating



jury and this Court found the testimony of [the victim] to be wholly

           See Trial Court Opinion, 3/13/14, at 3.

      Appellant presents the following issue for our review:

      It is the position of the Appellant that the evidence presented
      against him at his jury trial was insufficient to justify a conviction
      of simple assault.



      Despite the manner that Appellant styled his claim in the summary of




                                        is is a distinct legal challenge. Unlike

sufficiency-of-the-evidence claims, before reaching the merits of a challenge

to the weight of the evidence, we must determine whether Appellant

properly preserved it for consideration on appeal. Pennsylvania Rule of

Criminal Procedure 607 provides in relevant part as follows:




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       (A) A claim that the verdict was against the weight of the
       evidence shall be raised with the trial judge in a motion for a
       new trial:

          (1) orally, on the record, at any time before sentencing;

          (2) by written motion at any time before sentencing; or

          (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).

       While Appellant raised his claim that the verdict was against the

weight of the evidence in the argument section of his brief on appeal, it is

unclear whether he complied with Rule 607. The claim was not articulated in

              pro se correspondence that the trial court deferred to counsel

pursuant to Rule 576, and no counseled post-sentence motion was filed.

Similarly, the substance

the trial court. Therefore, it does not appear that Appellant complied with

Rule 607. Accordingly, this claim is waived.2 Moreover, assuming arguendo

that he had complied with Rule 607, the issue would be waived because he
____________________________________________


2
   We observe that a weight of the evidence claim is one of the least
assailable reasons for granting a new trial. See Commonwealth v. Brown,
648 A.2d 1177, 1189-

will not be disturbed. Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008).
Our review is highly

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). Herein, the
trial court expressly agreed with the jury that the vic
wholly credible. Accordingly, to the extent that Appellant raised his weight
claim pursuant to Rule 607 and preserved it for our review, we would find
that the trial court did not abuse its discretion in ruling against him.



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did not assert it with any specificity in his Rule 1925(b) statement. See Rule




      Furthermor

interpreted   as   assailing   the   sufficiency   of   the   evidence   that   the

Commonwealth adduced during trial, that claim fails.

      Our review is informed by the following principles:

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict[-]winner, are sufficient to
      establish all elements of the offense beyond a reasonable doubt.
      We may not weigh the evidence or substitute our judgment for
      that of the fact-finder. Additionally, the evidence at trial need
      not preclude every possibility of innocence, and the fact-finder is
      free to resolve any doubts regarding a defendant's guilt 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. When evaluating the credibility and weight of
      the evidence, the fact-finder is free to believe all, part, or none
      of the evidence. For purposes of our review under these
      principles, we must review the entire record and consider all of
      the evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276-77 (Pa.Super. 2006)

quoting Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa.Super. 2006).

      In order to sustain its burden of proof for a simple assault, Section

2701(a) of the Pennsylvania Crimes Code provides that:

      [T]he Commonwealth's burden [to prove] simple assault is to
      show [that the defendant] attempt[ed] to cause, or intentionally,
      knowingly or recklessly cause[d] bodily injury to another.

      or substantial pain.

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Commonwealth v. Emler, 903 A.2d 1273, 1276-77 (Pa.Super. 2006)

(quotations and citations omitted).

      The    existence   of   substantial   pain   may   be   inferred   from   the

circumstances surrounding the use of physical force even in the absence of a

significant injury.   Commonwealth v. Richardson, 636 A.2d 1195, 1196



his glasses, caused him to stumble backwards, and caused pain for the next

few days was sufficient to sustain finding that Appellant caused bodily

injury).    Howev

resulting from trivial contacts which are a customary part of modern day

            Commonwealth v. Kirkwood, 520 A.2d 451, 454 (Pa.Super.

1987).

                                                                  ubstantial pain

because her bodily injury was palpable.       Appellant, a trained MMA fighter,

repeatedly punched the victim on the side of her face with extreme force.



injuries required immediate medical treatment and a referral to an ENT

surgeon.     This is not a scenario where a victim suffered temporary



assault suffered seven facial fractures, permanent numbness, and blurred




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finding that the Commonwealth adduced sufficient evidence to sustain the

simple assault conviction. See Richardson, supra at 1196.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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