J-A03028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

HELBERT MERCADO

                         Appellant                    No. 3234 EDA 2014


          Appeal from the Judgment of Sentence August 26, 2014
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0003365-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                                FILED MAY 18, 2016

      Appellant, Helbert Mercardo, appeals from the August 26, 2014

aggregate judgment of sentence 4 years and 11 months to 9 years and 11

months’ imprisonment, followed by 2 years’ probation. After careful review,

we affirm on the basis of the trial court’s March 2, 2015 opinion.

      The relevant procedural history was succinctly summarized as follows.

                  [Appellant] was charged with criminal trespass,
            in violation of 18 Pa.C.S.A. § 3503(a)(1)(ii); simple
            assault, in violation of 18 Pa.C.S.[A.] § 2701(a)(3);
            harassment,      in   violation   of   18    Pa.C.S.[A.]
            § 2709(a)(1); unauthorized use of automobiles and
            other vehicles, in violation of 18 Pa.C.S.[A.] § 3928;
            criminal mischief, in violation of 18 Pa.C.S.[A.]
            § 3304(a)(5); burglary, in violation of 18 Pa.C.S.[A.]
            § 3502(a)(1); robbery, in violation of 18 Pa.C.S.A.
            § 3701(a)(1)(iv); false imprisonment, in violation of
            18 Pa.C.S.[A.] § 2903; and theft by unlawful taking
            or disposition, in violation of 18 Pa.C.S.[A.] 3921(a).
J-A03028-16


                 Prior to trial, the Commonwealth withdrew the
          theft by unlawful taking count. A trial was held June
          9, 2014 through June 11, 2014. The jury found
          [Appellant] guilty of criminal trespass, simple
          assault, and unauthorized use of automobiles and
          other vehicles. The jury found [Appellant] not guilty
          of false imprisonment, robbery and burglary. The
          [trial] court found [Appellant] guilty of the summary
          charges of harassment and criminal mischief.

                [Appellant] was sentenced on August 26,
          2014.     On count 1, criminal trespass, he was
          sentenced to 2 ½ to 6 years[’] incarceration,
          followed by 2 years[’] probation, and was ordered to
          pay costs and restitution.     On count 2, simple
          assault, he was sentenced to 1 to 2 years[’]
          incarceration to be served consecutive to count 1.
          Count 3, harassment, merged for sentencing
          purposes.    On count 4, unauthorized use of an
          automobile or other vehicle, he was sentenced to
          11 ½ to 23 months[’] incarceration to be served
          consecutive to count 2. The [trial] court did not
          impose any sentence on count 5, criminal mischief.
          He was further ordered to undergo drug/alcohol and
          mental health evaluations and ordered to comply
          with the recommended treatment.

                [Appellant] filed a Motion for Post Sentence
          Relief of September 5, 2014. In the motion, he
          argued that the sentence was excessive and that the
          weight of the evidence did not support the
          convictions of criminal trespass, simple assault and
          unauthorized use of an automobile. A hearing was
          held on October 21, 2014.           At the hearing,
          [Appellant] withdrew his weight of the evidence
          challenge. On that date the [trial] court denied his
          request to reduce the sentence.




                                  -2-
J-A03028-16


Trial Court Opinion, 3/2/15, at 1-2. On November 18, 2014, Appellant filed

a timely notice of appeal.1

       On appeal, Appellant raises the following issues for our review.

              I.     Whether [Appellant] filed a timely appeal?

              II.    Whether there was insufficient evidence to
                     sustain a conviction for simple assault under
                     18 Pa.C.S.A. § 2701(a)(3) and whether the
                     trial court erred and abused its discretion when
                     denying [Appellant]’s motion for judgment of
                     acquittal for simple assault under 18 Pa.c.S.A.
                     § 2701(a)(3)?

              III.   Whether the trial court erred and abused its
                     discretion by permitting the Commonwealth to
                     amend and add to Count 3 of the Information,
                     simple     assault    under    18  Pa.C.S.A.
                     § 2701(a)(1)?

              IV.    Whether the trial court erred and abused its
                     discretion    by   denying      [Appellant]    the
                     opportunity to cross-examine the victim and
                     victim’s    sister  regarding      the    victim’s
                     relationship with Mo in order to call into
                     question the victim’s credibility?

Appellant’s Brief at 7.

       In his first issue, Appellant asserts his appeal was timely filed. Id. at

17-18. As noted, Appellant was sentenced on August 26, 2014. Therefore,

Appellant had until September 5, 2014 to file a timely post-sentence motion.

See generally        Pa.R.Crim.P. 720(A)(1).        The   original docket stated

____________________________________________


1
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -3-
J-A03028-16


Appellant’s post-sentence motion was filed on September 19, 2014, when

the notice of hearing on Appellant’s post-sentence motion was filed.        On

January 13, 2015, this Court filed a Rule to Show Cause as to why

Appellant’s November 18, 2014 notice of appeal should not be considered

untimely filed.   On January 20, 2015, Appellant filed a reply attaching a

certified copy of his post-sentence motion filed on September 5, 2014, and

an amended copy of the Chester County docket reflecting a correction of

said date.     Accordingly, Appellant’s September 5, 2014 post-sentence

motion was timely filed, and the notice of appeal filed November 18, 2014,

was filed within 30 days of the date Appellant’s post-sentence motion was

denied by the trial court on October 21, 2014. As a result, Appellant’s notice

of appeal was timely filed.

      Turning to the merits, we address Appellant’s second and third issues

together.    In said issues Appellant asserts the trial court erred in allowing

the Commonwealth to amend the simple assault count from 18 Pa.C.S.A. §

2701(a)(3), to include simple assault pursuant to subsection (a)(1) as well.

Appellant’s Brief at 22.      Further, Appellant argues there was insufficient

evidence to convict him of simple assault under subsection (a)(3).      Id. at

18-20.

      Our review is guided by the following.

                   The criminal information “is a formal written
             statement charging the commission of an offense
             signed and presented to the court by the attorney for
             the Commonwealth after a defendant is held for

                                      -4-
J-A03028-16


           court....”   Pa.R.Crim.P. 103.       The information
           apprises the defendant of the filed charges so he can
           prepare a defense.       See Commonwealth v.
           Sinclair, 897 A.2d 1218, 1223 (Pa. Super. 2006).

                 Pennsylvania Rule of Criminal Procedure 564
           permits the amendment of the information “when
           there is a defect in form, the description of the
           offense(s), the description of any person or any
           property, or the date charged, provided the
           information as amended does not charge an
           additional or different offense.” Pa.R.Crim.P. 564.
           “[T]he purpose of Rule 564 is to ensure that a
           defendant is fully apprised of the charges, and to
           avoid prejudice by prohibiting the last minute
           addition of alleged criminal acts of which the
           defendant is uninformed.” Sinclair, 897 A.2d at
           1221 (citation omitted). A court must look to see

                 [w]hether the crimes specified in the original
                 indictment or information involve the same
                 basic elements and evolved out of the same
                 factual situation as the crimes specified in the
                 amended indictment or information. If so, then
                 the defendant is deemed to have been placed
                 on notice regarding his alleged criminal
                 conduct. If, however, the amended provision
                 alleges a different set of events, or the
                 elements or defenses to the amended crime
                 are materially different from the elements or
                 defenses to the crime originally charged, such
                 that the defendant would be prejudiced by the
                 change, then the amendment is not permitted.

           Id. (citation omitted).

Commonwealth v. Veon, 109 A.3d 754, 768 (Pa. Super. 2015), appeal

granted in part, 121 A.3d 954 (Pa. 2015).

     Further, when reviewing a claim of insufficient evidence, we look to the

following standard of review. “In reviewing the sufficiency of the evidence,


                                     -5-
J-A03028-16


we consider whether the evidence presented at trial, and all reasonable

inferences drawn therefrom, viewed in a light most favorable to the

Commonwealth as the verdict winner, support the jury’s verdict beyond a

reasonable doubt.”   Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.

2014) (citation omitted), cert. denied, Patterson v. Pennsylvania, 135 S.

Ct. 1400 (2015).     “The Commonwealth can meet its burden by wholly

circumstantial evidence and any doubt about the defendant’s guilt is to be

resolved by the fact finder unless the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113

(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),

appeal denied, 95 A.3d 277 (Pa. 2014).      As an appellate court, we must

review “the entire record … and all evidence actually received[.]”       Id.

(internal quotation marks and citation omitted).   “[T]he 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.” Id. (citation

omitted). “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation omitted), cert. denied,

Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      The crime of simple assault is codified in the Pennsylvania Crimes

Code and provides, in relevant part, as follows.


                                     -6-
J-A03028-16


           § 2701. Simple assault

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

                 (1) attempts to cause or intentionally,
                 knowingly or recklessly causes bodily injury to
                 another;

                                        …

                 (3) attempts by physical menace to put
                 another in fear of imminent serious bodily
                 injury[.]

18 Pa.C.S.A. § 2701(a)(1),(3).

           Furthermore, it is axiomatic that simple assault does
           not require a victim to suffer actual bodily injury.
           The attempt to inflict bodily injury may be sufficient.
           This intent may be inferred from the circumstances
           surrounding the incident if a specific intent to cause
           bodily injury may reasonably be inferred therefrom.

Commonwealth v. Polston, 616 A.2d 669, 679 (Pa. Super. 1992) (internal

citations omitted), appeal denied, 626 A.2d 1157 (Pa. 1993).

     The trial court’s March 2, 2015 Rule 1925(a) opinion, thoroughly

addresses both of these issues.    See Trial Court Opinion, 3/2/15, 3-14.

Specifically, the trial court noted the “amendment to the information did not

change the factual scenario supporting the charges, nor did it add new facts

previously unknown to [Appellant].” Id. at 7. “The entire factual scenario

was developed during the preliminary hearing … the amendment allowed the

jury to consider two types of simple assault consistent with the facts –

attempt to cause or caused bodily injury as well as put the victim in fear of


                                    -7-
J-A03028-16


imminent serious bodily injury.” Id. Additionally, “[d]efense counsel did not

allege that a change in defense strategy was necessitated by the

amendment.” Id. Accordingly, the trial court found it was proper to grant

the Commonwealth’s request to amend the complaint.

      As to the sufficiency of the evidence, the trial court fully and

accurately recounted the applicable law and facts as applied to this matter.

Id. at 9-22. Further, the trial court noted Appellant is “not challenging the

conviction   of   simple   assault,    bodily   injury   caused   under   [Section]

2701(a)(1). Therefore, he acknowledges that his actions … resulted in the

victim suffering bodily injury.”      Id. at 22.   Accordingly, Appellant is only

challenging that the trial court erred in finding Appellant “attempted by

physical menace to put another in fear of imminent serious bodily injury.”

Id.   In reaching its conclusion that the evidence was sufficient, the trial

court found as follows.

             There is no question that [Appellant] intentionally
             placed [the victim] in fear of imminent serious bodily
             injury through the use of menacing or frightening
             activity.

                   There were numerous physical altercations and
             struggles between [Appellant] and the victim
             including struggling in her bedroom, master
             bathroom and powder room before [Appellant] left
             the house. [The victim] locked the door knob and
             the deadbolt and probably believed the incident to be
             done. [Appellant] decided to violently crash through
             her double locked front door, got in her face saying,
             “What now, b[**]ch?” The victim once again tried to
             escape his wrath and was holding onto the door


                                        -8-
J-A03028-16


             jamb, as he was trying to pull her back into the
             house.

                    Instead of finally letting her go, [Appellant]
             grabbed her by the hair on the back of her head and
             yanked as hard as he could, which tossed her to the
             floor on her tailbone. Did he stop at this point? No.
             He continued to yell at her and kicked her so hard a
             couple of times that she slid across the floor and hit
             the bottom of the table with the back of her head.
             Did he stop at this point? No. As she was trying to
             crawl through the dining room to escape him, he
             stood over her and squatted down toward her. As
             [the victim] testified, when this was happening she
             really thought she was going to die. She had never
             seen such hatred and black in someone’s eyes. She
             really thought he was going to kill her.

                   Based upon the totality of circumstances, it is
             abundantly clear that it was [Appellant]’s intention to
             place [the victim] in fear of imminent serious bodily
             injury through his use of menacing and frightening
             actions. Accordingly, it was proper for the jury to
             find [Appellant] guilty of simple assault, pursuant to
             [Section] 2701(a)(3).

Id. at 23.

      Finally, in his last issue Appellant argues the trial court erred by not

allowing him to cross-examine the victim or the victim’s sister about the

victim’s ex-boyfriend.   Appellant’s Brief at 24.   In reviewing a trial court’s

ruling on the admissibility of evidence, our standard of review is one of

deference. Commonwealth v. Selenski, 18 A.3d 1229, 1232 (Pa. Super.

2011).   Questions concerning the admissibility of evidence are within “the

sound discretion of the trial court, and its discretion will not be reversed

absent a clear abuse of discretion.”    Id. (citation omitted).   “An abuse of


                                      -9-
J-A03028-16


discretion is not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown

by the evidence of record.” Commonwealth v. Harris, 884 A.2d 920, 924

(Pa. Super. 2005) (citations and internal quotation marks omitted), appeal

denied, 928 A.2d 1289 (Pa. 2007). “[I]f in reaching a conclusion the trial

court over-rides [sic] or misapplies the law, discretion is then abused and it

is the duty of the appellate court to correct the error.” Commonwealth v.

Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted), appeal

denied, 986 A.2d 150 (Pa. 2009). Further, “[a] trial judge has considerable

latitude in determining the scope of cross-examination and his determination

will not be reversed in the absence of an abuse of discretion unless a party

suffers an obvious disadvantage.” Yacoub v. Lehigh Valley Med. Assocs.,

P.C., 805 A.2d 579, 597 (Pa. Super. 2002), appeal denied, 825 A.2d 639

(Pa. 2003) (citation and internal quotation marks omitted).

      Appellant lists three examples of evidence he was precluded from

admitting via cross-examination of the victim and her sister.       Appellant’s

Brief at 24-28. In its Rule 1925(a) opinion the trial court lists each example,

the sidebar discussions surrounding each objection, and its ultimate

reasoning for precluding the evidence from being admitted.          Trial Court

Opinion, 3/2/15, at 24-35. Upon thorough review of the briefs, the certified




                                     - 10 -
J-A03028-16


record, and the trial court’s opinion, we conclude the trial court did not

abuse its discretion.

      Based on the foregoing, we conclude the trial court’s March 2, 2015

Rule 1925(a) opinion fully and accurately disposes of each of Appellant’s

issues on appeal. Accordingly, we adopt the opinion of the Honorable Phyllis

R. Streitel for purposes of our review and affirm the trial court’s August 26,

2014 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016




                                    - 11 -
                                                                         Circulated 04/29/2016 02:41 PM




COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

                                                 : CHESTER COUNTY, PENNSYLVANIA
       vs
                                                 : CRIMINAL ACTION

· HELBERT MERCADO                                : NO. 3365~13

                                                 : SUPERIOR CT. NO. 3234 EDA 2014 ·

Nicholas Casenta, Esquire, attorney for the Commonwealth.
Mitchell H. Baylarian, Esquire, attorney for Defendant.


                            STATEMENT OF THE COURT                            .. ·_.:.~
                                                                              . ·. :·. ·;--· .·~
                                                                                                   -
                                                                                                   ~
                                                                                                   cfl
                                                                                                   -:.it.   ··rl

       On November 18, 2014, Defendant filed
                                           . a timely
                                                  .
                                                      appeal
                                                        .
                                                             of thfs??~se
                                                                    . ~. . . ~.
                                                                                ;~9wing\he
                                                                                  ' ...... . · .:::

entry of this Court's October 21, 2014 order denying his
                                                     . request to mod\fy'_sent~ce_-_-
                                                                    : . . . r:-?     ~'An
                                                                                       .. .,
appeal having been taken, pursuant to Pc:1.R.A.P. 1925(a), the followin~{~t~teme,Jlt is

submitted.
       Defendant was charged wtth criminal trespass, in violation of 18 PaC.S.A. §

3503(a)(1)(ii); simple assault, inviolation of 18 Pa.C.S. § 2701(a)(3); harassment, in

violation of -18 Pa.C.S. § 2709(a)(1); unauthorized use of automobiles and other vehicles,

in violation of 18 Pa.C.S. § 3928; criminal mischief, in violation of 18 Pa.C.S. §

3304(a)(5); burglary, in violation of 18 Pa.C.S. § 3"502(a)(1); robbery, in violation of 18

Pa.C.S.A. § 3701(a)(1)(iv); false imprisonment, in violation of 18 Pa.C.S. § 2903; and

theft by unlawful taking or disposition, in violation of 18 Pa.C.S.A. § 3921 (a).

       Prior to trial, the Commonwealth withdrew the theft by unlawful taking count.                               A

trial was held June 9, 2014 through June 11, 2014. The jury found Defendant guilty of

criminal trespass, simple assault, and unauthorized use of automobiles and other

vehicles. The jury found Defendant not guilty of false imprisonment, robbery and
burglary. The court found Defendant guilty of the summary charges of harassment and

criminal mischief.

       Defendant. was sentenced on August 26, 2014. On count 1, criminal trespass, he

was sentenced to 2   Yz to 6 years   incarceration, followed by 2 years probation, and was

ordered to pay costs and restitution. On count 2, slrnpie assault, he was sentenced to 1

to 2 years incarceration to be served consecutive to count 1. Count 3, harassment,

merged for sentencing purposes. On count 4, unauthorized use of an automobile or

other vehicle, he was sentenced to 11     Yz to 23 months   incarceration to be served

consecutive to count 2. The court did.not impose any sentence on count 5, criminal

mischief. He was further ordered to undergo drug/alcohol and mental health evaluations

and ordered to comply with the recommended treatment.

       Defendant filed a Motion for Post Sentence Relief on September 5,.2014.           In the

motion, he argued that the sentence was excessive and that the weight of the evidence

did not support the convictions of criminal trespass, simple assault and unauthorized use

of an automobile. A hearing was held on October.21, 2014. At the hearing, Defendant

withdrew his weight of the evidence challenge. On that date the court denied his request

to reduce the sentence.

       On November 18, 2014, Defendant filed a Notice of Appeal. On that same date,

this court entered an Order requiring Defendant. to submit a Concise Statement of Errors

Complained of on Appeal within twenty-onefz l) days. Due to a transcript issue,

Defendant filed a Motion for Extension to File 1925(b) Statement on December 9, 2014.

Said Motion was granted on December 10, 2014. Defendant filed his Concise Statement

on December 17, 2014. Defendant sets forth six items of complaint.




                                            2
Simple Assault

       The first two issues concern the conviction for simple assault; First, Defendant

argues that "[t]he evidence presented at trial was insufficient to sustain a oonvlction for

Simple Assault. 18 Pa.C.S.A. § 2701 (a)(3). The Court erred and abused its discretion by

denying Defendant's motion for judgment of acquittal, at the conclusion of the

Commonwealth's case, on the charge of 18 Pa.C.S.A. § 2701(a)(3)." second. Defendant

argues that "[t]he court erred and abused its dlscretlon by permitting the Commonwealth

to amend and add to Court 3 of the Information, Simple Assault, 18 Pa.C.S.A. §

2701(a)(1)."

       We shall address the Information amendment first. Pennsylvania law is clear that

"[a]ccording to Pa.R.Crim.P. 564, the court may permit amendment of an information

'when there is a defect in form, the description of the offense(s), the descriptionof any

person or any property, or the date charged, provided the information as amended doe

not charge an additional or different offense." Commonwealth v. Mentzer, 18 A.3d

1200, 1202 (Pa.Super. 2011), quoting Pa.R.Crim.P. 564. '"The purpose of Rule 564 is t

ensure that a defendant is fully apprised of the charges, and to avoid prejudice by

prohibiting the last minute addition of alleged criminal acts of which the defendant is

uninformed."' Mentzer, 18 A.3d at 1202, quoting Commonwealth v. Sinclair, 897 A.2d

1218, 1221 (Pa.Super. 2006).

       "Our courts apply the rule with an eye toward its underlying purposes and with a

commitment to do justice rather than be bound by a literal or narrow reading of the
                                                                  I




procedural rules."' Mentzer, 18 A.3d at 1202, quoting.Commonwealth v. Grekis, 6Qt

A.2d 1284, 1288 (Pa.Super. 1992). When presented with a question concerning the




                                           3
propriety of an amendment, courts must consider the following: "whether the crimes

specified in the original indictment or information involve the same basic elements and

evolved out of the same factual situation as the crimes specified in the amended

indictment or information. If so, then the defendant is deemed to have been placed on

notice regarding his alleged criminal conduct. If, however, the amended provision

alleges a different set of events, or the elements or defenses to the amended crime are

materially different from the elements or defenses to the crime oriplnally charged, such

that the defendant would be prejudiced by the change! then the amendment (sic) is not

permitted." Mentzer, 18 A.3d at 1202, quoting Sinclair, 897 A..2d at 1221, quoting

Commonwealt~ v. Davalos, 779 A.2d 1190, 1194 (Pa.SupeL 2001 ), app. denied, 790

A.2d 1013 (Pa. 2001 ).
                                        .                 .
       "Additionally, 'in reviewing a grant to amend an information, the Court will look to

whether the appellant was fully apprised of the factual scenario which supports the

charges against him. Where the crimes specified in the original information involved the

same basis elements and arose out of the same factual situation as the crime added by

the amendment, the appellant is deemed to have been placed on notice rsqardlnq his

alleged criminal conduct and no prejudice to defendant results."' Mentzer, 18 A.3d at

1202-1203, quoting Sinclair, 897 A.2d at 1222.

       The factors a court must consider in determining whether an amendment to an

information would be prejudicial ar.e as follows: '"(1) whether the amendment changes .

the factual scenario supporting the charges; (2) whether the amendment adds new

facts previously unknown to the defendant; (3) whether the entire factual scenario was

developed during a preliminary hearing; (4) whether the description of the charges




                                            4.
changed with the amendment; (.5) whether a change in defense stra_tegy was

necessitated by the amendment; and (6) whether the timing of the Commonwealth's

request. for amendment allowed for ample notice and preparation."'       kl
       In the case at hand, Defendant was initially charged with simple assault under 18

Pa.C.S.A. § 2701 (a)(3), attempt by physical menace to put the victim in f~ar of imminent

serious bodily injury. The ·original information did not include simple assault under section

(a)(1 ), attempts to cause or intentionally, knowingly or recklessly cause~ bodily injury to

another.   Prior to the start of trial, the Commonwealth requested that the simple assault

count include (a)(1) with the (a)(3) that was originally charged.

       A review of the record reveals that the Affidavit of Probable Cause attached to the

Police Criminal Complaint sets forth the following partial facts: " ... When Benites tried to

get past the defendant and started s_creaming for help, he grabbed her by the hair and

drug her further into the residence. and threw her to the floor .. She hit her tailbone on the

floor and the back of her head on an unknown object, possibly the table in the

entranceway."

       Prior to the start of the trial, the following exchange took place between counsel

and the court:

               MS. LEIGH: Your Honor, the Commonwealth, the only other
       issue that I did wish to bring up to Mr. Baylarian late last week was
       that the Commonwealth would be. asking to amend the information
       to include simple assault (a)(1). Because robbery, bodily injury is
       already charged as Count 7, that's something that we read as prior,
       lesser included, but to make things as· seemless (sic) as possible -
               THE COURT: Did you turn over the information?
               MS. LEIGH: The one I already amended?
               THE COURT: Yes. I mean, but, originally, I mean, the police
       reports, excuse me -
              MS. LEIGH: Did I turn them over?
              THE COURT: Yes, in discovery.



                                           5
        MS. LEIGH: Yes.                                       .
       THI;: COURT: So you read the affidavit that says she was
 thrown on the floor or something; right? ·
        MR. BAYLARIAN: Right. I don't agree that it should be ·
 added.    It's not-
          THE COURT: But you were on notice, that's what I am
  getting to. You were put on notice that there was this violent act
  alleged in the complaint to the police.                     ·
          MR. BAYLARIAN: Yes. But.I don't think it's a lesser
·includeq with robbery, because there is an additional act.
         THE COURT: Well, let's say there wasn't a robbery in here
  and she came in and said, I want to add (a)(1) - .
          MR. BAYLARIAN: I would object to it because they did not
  put that in at the time of preliminary hearing. So it has not met that
  standard because it's a completely different offense than (a)(3).
          We're talking about somebody putting somebody in fear,
  physical menace, immediate serious, as opposed to knowingly,
. recklessly causing bodily injury.
          1HE COURT: Was there a preliminary hearing?
          MS. LEIGH: There was. ·
          THE COURT: Was there evidence of her being thrown on
  the floor?
          MR. BAYLARIAN: There was, There was testimony from the
  victim. If that's what we are proceeding on, I want to make it clear if
  they say (a)(1) based on him throwing her on· the floor, I just want
  that to be specific then,                                       ·
          THE COURT: I am just using that in general. Let's see.
          He grabbed her by the hair, drug her further into the
  residence and threw her to the floor. She hit her tail bone on the
  floor and the back of her head on an unknown object.
          MS. LEIGH: I believe the victim's testimony was that she
  was kicked.
          THE COURT: Kicked? ·
          MS. LEIGH: Kicked. Okay.
          MR. BAYLARIAN: Robbery doesn't, does not, include
  intentionally causing bodily injury. With simple assault, it does.
          MS. LEIGH: It does include inflicting bodily injury.
          MR. BAYLARIAN: But not intended.
          THE COURT: We're on simple- assault.
          MR.· BAYLARIAN: That's correct.
          THE COURT: You said - I thought someone said serious
  bodily injury.
          MR. BAYLARIAN: There is, for 3, (a)(3) simple assault,
  which is charged on the information.
          THE COURT: Okay.




                                     6
                             I


                  So you can add - I will allow you to add (a)(1) to the
        information.
               Are you asking to remove (a)(3)?
               MS. LEIGH: No, your Honor.
               THE COURT: You want to add (a)(1 ). I find there has been
        notice and certainly that's in play here from the beginning. So it's
        allowed.

 (N.T., 6/9/14, pgs. 14-17).

        It is clear that this amendment to the Information did not change the factual

 scenario supporting the charqes,     nor   did it add new facts previously unknown to the

 defendant. The entire factual scenario was dsveloped during a preliminary hearing and

 the Defendant was put on notice of these facts In the Police Criminal Complaint. The

· number of counts did not change with the amendment, but the aniendment allowed the

 jµry to consider two types of simple. assault consistent with the facts .: attempt to cause

 or caused bodily injury as well as put the victim in fear of imminent serious bodily injury.

        Defense counsel did not allege that a change in defense strategy was

 necessitated by the amendment. Finally, the timing of the Commonwealth1s request for

 amendment allowed for ample notice and preparation for the defense. VVhile the

 Commonwealth formally requested the amendment immediately prior to trial, the record

 reflects that it was discussed by the attorneys the week prior to trial. In addition, the

 defense has always been aware of the allegations of the physical assault of the victim .

        Based upon the totality of the circumstances, it was proper to grant the

 Commonwealth's request to amend the complaint. Defendant's argument on appeal is

 without merit.

        We now turn to Defendant's argument that the evidence presented at trial was

 insufficient to sustain a conviction for Simple Assault, 18 Pa.C.S.A. § 2701 (a)(3). The




                                              7
standard for reviewing the sufficiency of the evidence
                                                  .
                                                       is "whether the evidence, viewed
                                                                                    .


in the light most favorable-to the Commonwealth as verdict winner, is sufficient to

enable the fact-finder to find every element of the crime beyond a reasonable doubt."

Commonwealth v. Matthew, 909 A.2d 1254, 1256-57 (Pa. 2006), citing Commonwealth

v. Williams, 896 A.2d 523, 535 (Pa. 2006), cert, denied, 127 S.Ct. 1253 (2007), and

Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005).

       In addition, all reasonable inferences drawn from the evidence must be viewed in

the light most tavorable to the Commonwealth. Commonwealth v. McCollurri, 926 A.2d

527, 530 (Pa . Super. 2007), quoting Commonwealth v. Earnest, 563 A.2d 158, 159

(Pa.Super. 1989). "The test is whether the evidence, thus viewed, is sufficient to prove

guilt beyond a reasonable doubt." McCollum, 926 A.2d at 530, citing Commonwealth v.

Swerdlow, 636 A.2d 1173 (Pa.Super. 1994). "'This standard is equally applicable to

cases where theevidence is circumstantial rather than direct so long as the

combination of the evidence links the accused to the crime beyond a reasonable·

doubt."' McCollum, 926 A.2d at 530, quoting Swerdlow, 636 A.2d at 1176.

       A conviction must be based on more than mere suspicion or conjecture,

however, the Commonwealth does not need to establish guilt to a mathematical

certainty. McCollum, 926 A.2d at 530, quoting Commonwealth v. Badman, 580 A.2d

1367, 1372 (Pa.Super. 1990). "Moreover, the facts and circumstances established by

the Commonwealth need not preclude every possibility of innocence." Commonwealth

v. Marrero, 914 A.2d ·870, 872 (Pa.Super. 2006), citing Commonweal~h v. Bullick, 830

A.2d 998, 1000 (Pa.Super. 2003). However, if the evidence "is in contradiction to the

physical facts, in contravention to human nature, then the evidence is insufficient as a




                                          8
matter of law." Commonwealth v. Heater, 899 A.2d 1126, 1131 (Pa.Super. 2006),

quoting Commonwealth v. Widmer, 744 A2d 745, 751 (Pa. 2000).

       The court may not weigh the evidence and substitute its judgment for the fact-

finder. Id.. "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." Marrero, 914 A.2d at 872, ·

citing Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001), app. denied,

806 A.2d 858 (Pa. 2002). When evaluating the credibility of the witnesses and

evldence as well as the weight of the evidence, the fact-finder is fre~ to believe all, part,

or none of the evidence presented. Commonwealth v. Faulk, 928 A.2d 1061, 1069

(Pa.Super. 2007), quoting Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa.Super.

2006), app. denied, 917 A.2d 846 (Pa. 2007).

       The uncorroborated testimony of one victim, if believed by the trier of fact, is

sufficient to convict a defendant, if all the elements of a crime are established beyond a .

reasonable doubt. Commonwealth v. Mack, 850 A.2d 690, 693 (Pa.Super. 2004), citing

Commonwealth v. Davis, 650 A.2d 452, 4?5 (Pa.Super. 1994), app. granted, 659 A.2d

557, affirmed, 674 A.2d 214 (Pa. 1996).

       This court shall apply the above standards when examining the sufficiency of the

evidence. The jury found Defendant guilty of simple assault under 18 Pa.C.S.A. §

2701 (a)(1) and (a)(3). However, on appeal, Defendant is only challenging the conviction

under (a)(3). The Pennsylvania Crimes Code, at 18 Pa.C.S.A. § 2701(a)(3) states that "a

person is guilty of assault if he ... attempts by physical menace to put another in fear of

imminent serious bodily injury."




                                          9
           The Crimes Code defines "serious bodily injury" as "[b]odily injury which creates

a substantial      risk pf death or which causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ." 18
                                                                         11
Pa.C.S.A. § 2301. The term "bodily injury" is defined as                      [i]mpairment of physical

condition or substantial pain." M,, ·

           Pennsylvania courts have held that the sufficiency of the evidence to prove

simple assault by physical menace can be met when the following elements are proven:

intentionally placing another in fear of imminent serious. bodily injury through the use of

menacing or frightening activity. Commonwealth v. Reynolds, 835 A.2d 720, 726

(Pa.Super. 2003), quoting Commonwealth v. Repko, 817 A.2d 549, 554 (Pa.Super.

2003), quoting Commonwealth v. Little, 614 A.2d 1146, 1148 (Pa.Super. 1992). '"Intent

can be proven by circumstantial evidence and may be inferred from the defendant's

conduct under the attendant circumstances."' Reynolds, 835 at 726, quoting Repko,

817 A.2d at 554, quoting Little, 614A.2d at 1154.

          The evidence taken in the light most favorable to the Commonwealth, shows the

following applicable facts:

           Jessica Benites 1 testified that she is thirty-three years old and is a registered

nurse. She lives in Thorndale, Chester County and has known Defendant for a couple of

years. She had been in a romantic relationship with him, but by July 2013 she was

attempting to end the relationship and was trying to distance herself from him. Starting

the beginning of July 2013, she would not let Defendant come to her house as often as

before. The week prior to the incident, she was still communicating with him via text but



1   The testimony of Jessica Benites is located at N.T., 6/10/1'4, pgs. 28-182.



                                                   10
would not let him come over. She was not calling him much at all.     .

         Prior to July 2013, Defendant had stayed at the victim's house but he did not have

a key to the house. She kept her Infinity G35X sedan at the house and she had given

Defendant a key to the vehicle. He was allowed to use the vehicle if he asked Ms.

Benites for permission. Defendant was granted permission unless the victim needed to

use the car. He would not take the car if she told him no.

         Between July 10, 2013 and July 18, 2013 Defendant would visit Ms. Benites at her

house but she would not let him sleep over. She had asked him for the car key back, but

the conversation did not go well and Defendant had retained the key. ·On Friday, July 19,

2013, Defendant was allowed to spend the night because the arrangements he ·made to

stay with family fell through. The victim felt bad because there was a heat wave at the

time,   so she allowed him to sleep over with the understanding that he would make
arrangements for the next night. Defendant-agreed and left by 10:00 A.M. on Saturday,

July 20, 2013.
         Defendant proceeded to text the victim throughout the day. He asked if she would

consider letting him stay another night. He assured her that he would honor her wishes

and leave the following morning and said he would not stay again after that. He

continued to ask her throughout the day and finally around 9:00 PM, she said okay, with

the understanding that he would leave the following morning and that it was the absolute

last time he could stay over.

         Defendant arrived at her house about 9:30 PM. Ms. Benites stayed with

Defendant in the downstairs part of her house. Defendant was sick and kept going out to




                                          11
    her patio to wretch over the side. She was trying to help him. Eventually, Defendant felt

    better and asked her for alcohol. She told him that he should not drink alcohol because

    he had not been feeling well. ·

           Ms. Benites returned to the living room and continued to watch a movie. She did

    not pay attention to what Defendant was doing. At approximately 11 '.00 PM, he asked to

    borrow her car to go to Wawa to get a cigar. She denied his.req~est. She realized he

    had been drinking. Defendant said fine, he would walk. At that point, Defendant still had.

    the spare key to her car in his pocket.

           Defendant returned afterrnidnlqhtand was not in a good mood. He tried to argue·

with Ms. Benites about their relationship. He kept picking at things and accused her of

wanting to be with other men.           He asked her to give him a ride to Coatesville and she
refused. She told him that she was going to bed and that he could sleep on the sofa.

She went upstairs to her master bedroom with attached bathroom, to get ready for bed.

She was in the bathroom for about ten minutes. When she exited, she saw Defendant

sitting on her bed.

           He again asked her for a ride and she said, no. She told him that she did not want

to fight with him. He next requested if he could sleep in her bed with her one more time

and she said, no. Ms. Benites then told him to stay in her bed and that she would go

sleep in her daughter's bedroom.2 She gathered her pillow and some items to leave· the

room. At that point, Defendant said, "No," and pushed her.

           Ms. Benites told him that she did not want to be with him anymore, did not want to

see him and wanted things to be done. She told Defendant that she did not want to fight,


2
    The child was away visiting her grandparents in New Jersey.



                                                  12
and if he was going to fight with her, he needed to leave. She told him to just get out, he

was not welcome there anymore. She told him to. sleep downstairs or leave. She did not

want to deal with it anymore. She asked for her car key back and he gave it to her. After

she watched him exit the room, she threw the car key under the bed. She did not think

Defendant saw:where she put it.

       Defendant had gone downstairs. Ms. Benites was tired so she laid down, buts he

left the bedside lamp on. She put. her phone on the charger next to the bedside lamp.

She fell asleep. At some point that night she woke up to find Defendant in her bedroom

again. She told him to get out. When she tried to grab her phone to call for help,

Defendant jumped over the bed toward her and knocked the phone away from her. He

grabbed the phone and threw it as hard as he could at the wall across from the bed. The

phone hit the wall and dropped down.

       They both then tried to get the phone, but Defendant got it first and put it in his

pocket. The victim tried to go into her bathroom arid close its door, but he kept pushing

his way through. She was screaming for him to get out as loud as she could. She started

banging on the wall to try to attract the attention of her neighbor. She then tried to get

around Defendant because she did not want to be stuck in the bathroom with him. He

blocked her exit. Eventually she got past him but he blocked her exit from· the bedroom.

       Ms. Benites tried to push pasthim and tried to get her phone, She continued to

tell him to get out. She asked him for her phone several times. Defendant would not

return her phone. She was finally able to get past Defendant and went downstairs

quickly. She knew that she had a government- assigned work phone ln her work bag

downstairs. She retrieved the phone from her bag in the dining room and went       to the



                                          13
powder room to try to lock herself in to turn on the phone and call 911. This phone was

an older flip phone that took time to power on.

       When she reached the powder room, she could not close the door because

Defendant would not let her. He was pushing himself through the door and she was
                                                                                       11get
trying to push him out. He continued to reach for her as she repeatedly told him to

out, go, leave." Eventually, Defendant got fed up and said, "fine, Pll leave." Ms. Benites

watched him walk out the front door, through the· yard and past the tree . She slammed

the door and locked the knob and the deadbolt.

       Ms. Benites turned to walk up the stairs, intendlnq to go to her bedroom. At the

same time she was trying to turn on the phone. At about her second or third step she.

heard a 11God awful crash." As she turned around, Defendant was inside, in her face

saying, "What now, bitch?" She tried to get past him to run out the door and she was still

trying to turn on the phone. When she !JOt to the door defendant was trying to pull her

back by her upper torso and telling her to shut up. She was holding on to. what was leftof

the door jamb and was screaming as loud as she could for somebody to please help her.

       Ms. Benites was almost out the door when Defendant grabbed a chunk of her hair

on the back of her head and yanked her into the house. She fell down on her tallbone.

He continued to tell h.er to shut up. After she hit the floor, he kicked her a couple of times

on her lower legs and she slid across the floor and hit the bottom of a table with the back

of her head. She roiled over and tried to crawl through the dining room to get to the

kitchen.      She turned to her side in a fetal position when Defendant was standing over

her and squatted. down telling her to "be quiet, calm down." The victim was hysterically

screaming at him to "get out, get the fuck away. Get away. Don't touch me. Get away."




                                          14
Ms. Benites testified that at the time this was happening, "I 'thought I was going to die.

really did. I never seen such hatred and black in someone's eyes. I really thought he

was going to kill me."

       Thereafter, Defendant said that he would leave after he collected his stuff. From

where she was laying, she could see Defendant going upstairs empty handed. He came

back downstairs in less than a minute. She could not see anything in his hands.

Defendant told her to "tell the cops" that he was taking her car, too. He walked out what

was left of the door and drove away in her car as she dialed 911.

       Ms. Benites spoke tothe dispatcher andthen sat on her steps sobbing until the

police arrived about three minutes later. The police asked her what happened. She was

crying and could not speak at first. She then told them what happened and described her

injuries. She was incredibly shaken up and her body was very sore. Her head hu_rt and

her tailbone hurt very badly. She did not have any bleeding or open wounds, so the

police did not photograph her that night.

       However, the following day bruises appeared on her body, specifically on the

bottom of her right leg on the external portion of her calf and near her ankle, on her inner

thigh, on her left leg and on her right upper arm. Her left arm was swollen. As registered

nurse with a Bachelor of Science in nursing, as well as her training in the military as a

combat medic, she Is familiar with the life cycle of a bruise. In her experience, it is not

unusual for her body to take·a couple of days for bruises to develop. Wheri she has

received bruises in the past, she may not have realized that she was injured until a day

later when she saw a purple/blue mark on her body. Over time it would get brown and

slowly heal as the blood dissolved back into the body. She has pain associated with .her




                                            15
bruises and the pain lessens as the bruises heal.

        In addition to the bruises, Ms. Benites' overall pain was more noticeable the

following day. It hurt her tailbone to move at all, either sitting or standing, When she

walked, her tailbone hurt   a lot.   Her whole body ached.   Six photographs of her

. injuries/bruises were taken between July 21st and July 281h, 2013 and admitted into

evidence at trial. Ms. Benites testified that she had some of the bruises for "a good two

and a half weeks" and that as of the time of trial, she still had a little discoloration on her

lower leg from one bruise. She had pain associated with the bruises .

       On the night of the incident, her door was destroyed. The frame was pulled apart

from the house and the door could not close or lock. The police officers called

emergency maintenance to come fix the door. Before the maintenance man arrived she

rolled her kitchen island to the front door location to prop the door and give some

resistance in case Defendant came back.

       Photographs of the broken door were admitted into evidence at trial. The

photographs depict the damage caused by Defendant and show that he kicked· the door

so hard that the paint was ripped off the inside wall near the door jamb. There were

shards _of wood_ everywhere and metal parts of the lock were on the floor. The door jamb

and frame broke both vertically and horizontally and had to be held together by screws

and caulk until a new one could be obtained. One of the photos showed Defendant's

footprint on the door.

       In addition to calling the police after the incident, Ms. Benites used her iPod to

connect to the internet and text her sister, Hayley Campbell and also called her best

friend, Luke Dubin. Ms. Campbell had been atthe beach and rushed back after the




                                            16
victim told her what happened. Ms. Benites contacted her sister because she hoped she

could be there when she spoke to the police. She contacted Mr. Dubin because she was

hysterical and needed someone else to be with her. ·

       Ms. Campbell, her sister, came to the house but did not spend the night because

she was too scared. Ms. Campbell waited until Mr. Dubin arrived before she left . Mr.

Dubin stayed the entire night. He sat up and kept watch while Ms. Benites tried to sleep,·

however, she was unable to sleep. She got up about 7:30 AM. on Sunday, July 21, 2013

and called ProtectCELL because they insure her phone-and she needed to request a

replacement.

       The victim and Mr. Dubin decided to drive around Coatesville to see if they could

find her car. Defendant's parents both live in Coateville, but at separate addresses. They

looked at both addresses and did not find her car . They turned onto Lincoln Avenue and

as they were driving past the Cool Bar, she looked in the parking lot and saw her car.

The color is a very distinctive bright blue and she-recognized it instantly. Mr. Dubin

parked his car to block in her car and called 911 to report that they found the missing car.

       While Mr. Dublin was on the phone with 911, Ms. Benites saw Defendant

approaching from   4th Avenue.   They stayed in Mr. Dublin's car with the doors locked.

Defendant waked up to the vehicle they were in. Ms. Benities rolled down her window a

crack and Defendant gave her the car keys and she rolled the window back up.

Defendant motioned for her to open her car trunk, she said no and he walked away.

       That night she did notwant to stay at her house, so she went back to her house to

pack a bag to stay elsewhere. When packing she noticed that the $300 she had stored in

her jewelry was missing. Only she and Defendant knew it was there. The last day she




                                          17
 saw it there was the prior.day, Saturday, July 20th. She did not take the $300 and no one

 else was in her bedroom other than Defendant.

            The following day, Monday, July 22, 2013, she went to the emergency room at

 Brandywine Hospital because she was sore and wanted documentation of her injuries.

 Ms. Benites found her phone in the cup holder of her car. It was sweltering hot and it

would not turn on. It was damaged. It looked like someone tried to pry off the back of the

 phone and the screen was all scratched up. She could not have access her cell phone·

 messages until Thursday, July 25' 2013.

           When the messages came through there were ten messages from Defendant

 asking for his belongings. When she could handle it, she took all Defendant's belongings

that were at her house to his· mother in Coatesville . She turned over fishing gear, a grill

 and everything that he was saying was his and his mother took possession of it.

          . Officer Howard Stpple3 testified at trial. He has been an officerwith the Caln

Township Police Department for eleven years. Prior to that, he worked as an officer in

West Grove and attended the police academy. His training included making observations

 of situations and people, including-whether they are intoxicated. He had observed

 hundreds of intoxicated people prior to trial.
                                                                                    '
           On July 21, 2013 he responded to a physical domestic·call at 23 Bluff Road in

. Caln Township and ·encountered Ms. Benites. Based on his training and experience he

did not believe that she was intoxicated. She was hysterical and it took the officers a

while to calm her down enough for her to tell them what happened.

           When he arrived on scene, Officer Sipple observed that the door frame was



3   The testimony of Officer Sipple is located at N.T; 6/10/14, pgs. 183-203.



                                                  18
    broken into pieces on the floor and the door was pushed off the frame. Ms. Benites

    reported that she was in an argument with her ex-boyfriend and it became physical. She

    reported that Defendant crashed back through the door after she had closed and locked

    it. She tried to escape but he grabbed her by the hair and pulled her back into the house.

     Ms. Benites reported pain in her tailbone and the back of her head. She said that he

    took her car when he left.

           In his experience with victims, Officer Sipple knows that bruising often develops

    after the fact. It might even take days for bruises to appear on a victim. Officer Sipple's

    partner, Officer Culbertson called the management office to have the door

    repaired/secured.

           Officer Jason .Culbertson4 testified that he has been employed by the Caln

    Township Police Department for fourteen years. Prior to that, he attended the police

    academy and received additional training. His training included identification of people,

    including whether they are intoxicated. He has observed hundreds of intoxicated people

    in the past.

           Oh July 21, 2013 he responded to a domestic dispute call at 23 Bluff Road in Caln

    Township and encountered Ms. Benites. Based on his.training and experience he did not

    believe that she was intoxicated. He did not smell alcohol on her. She was very excited,

    upset and concerned. He observed that the front door frame and locking mechanism to

    the door were damaged. The locking mechanism was split. It was obvious·that someone

    used force to enter the house.

           Officer Culbertson testified that Ms. Benities told him that she and Defendant were




                                             19
I
I
arguing. She kicked him out and Jocked the door. Thereafter, Defendant kicked the door

back in and came inside. They had a physical confrontation and Defendant took her keys

and car when he left. The officer did not observe any injuries on the victim but knows it is

very common for bruises to appear at some point later after an incident like this.

           Assistant District Attorney Anthony Rock5 testified that he is currently. employed by

the Chester County District Attorney's Office. Mr. Rock's testimony did not address

issues on appeal, so it is not summarized in this Statement.

           Hayley Campbe116 testified that Ms. Benites is her sister and they lived together on

July 2013 at 23 Bluff Road, Thorndale, PA. On July 20, 2013, Ms. Campbell went to

Ocean City, MD. On July 21, 2013 at about 3:30 AM. Ms. Benites sent her a text via her

iPod which came through as her email address to her phone. That was odd and alarming

because she would typically hear from her via 'normal phone text messaging.

           Ms. Campbell returned home because she was scared for hersister.                   Ms. Benites.

told her that Defendant had broken down the door, attacked her and stole her car. Ms.

Campbell wanted to make. sure her sister was all right. She arrived at the house at about
                                  '                              '


4:30 AM. When she arrived she noticed that the foyer was a mess. The door had been

kicked in, there were shards of wood all ~ver the floor with dust.' The foyer table had

been moved around and            h looked    like there had been a struggle. It did not look normal.

She also observed a big bootprint on the door. That bootprint was not on the door when

she left for the beach. At the time          of trial, almost a year later, there is still a faint bootprint

4   The testimony of Officer Culbertson is located .at N.T., 6/10/14, pgs. 245-251.

5   The testimony of ADA Rock ls located at N.T., 6/10/14, pgs. 204-211 .

6   The testimony of Ms. Campbell is located at N. T., 6/10/14, pgs. 211-235.




                                                    20
on the door.
           She saw Ms. Beni~es in the living room and found her to be scared and frazzled.

Ms. Benites told her that she had been thrown down and her back hurt. Their neighbor

was with her and the emergency maintenance people were there to try to fix the door

frame enough so that they could lock the door. When Ms. Campbell .arrived, the neighbor

left. About twenty minutes later Luke Dubin arrived.

           Between July 2151 ~nd July 281\ 2013, Ms. Campbell observed bruises _st~rting to

appear on tier sister. The bruises got bigger and bigger including           a particularly   nasty

bruise that developed on her leg toward the end of that time frame.

           Ms. Campbell testified that she knows a man by the name of Mo. He was an ex-

boyfriend of Ms. Benities around July 20, 2013 and that they had remained friends as of

that time.

           Luke Dubin' testified that Ms. Benites is one of his best friends. He has known her

for five or six years. During the early morning hours of July 21, 2013 he was in his

apartment in Ephrata, PA when he received a phone call from Ms. Benites. She was

hysterical, crying and upset. She had called him from her work phone, not her cell phone.

    She was not speaking in full sentences and was "very broken up." She told him that her

house was broken into. He asked if she needed him to come down and she responded,

"yes." The conversation lasted less than thirty seconds:

          Mr. Dubin left his house within 5 minutes. His apartment is about an hour away

from Ms. Benites' house and he arrived at about 5:00 AM. He observed that the door

had splinters missing from it and there were large screws holding the door jamb and



7   The testimony of Mr. Dubin is located at N.T., 6/10/14, pgs. 235-245 .



                                                   21
  frame in place. The entryway was in disarray.

          Ms. Benites was still upset a~d she told him that she was in pain.   He observed

 bruising on her arm. He directed her to get some sleep since she was up all night. She

 went to her bedroom and he watched Netflix for five hours. She came downstairs        about

 10:30 or 11 :OO AM. and they discussed what happened.        He observed bruising on her

 leg.

         Around noon they decided to go look for her car in Coatesville.   She saw her car in
                                                   .                .
 a bar parking lot. They n~eded to make some u-turns to get to the parking lot and then.

 he used his car to block her car into the parking spot. They were concerned about

 Defendant's location and what his actions would be if he returned. Mr. Dubin called the

.911 non_-emergency line and asked for a Coate.sville police officer to respond so that they

could recover the car. Th~y waited ten to fifteen minutes. Ms. Benites spotted Defendant

walking toward them, so Mr. Dubin called the 911 emergency line .

        . Defendant walked up to the passenger side of the car, said something to Ms.

Benites and dropped the keys through the crack in the window. He could not hear what

was said between them. Defendant left before the police·arrived.

        Defendant is not challenging the conviction of simple assault, bodily injury

caused under 18 Pa.C.S.A. § 2701 (a)(1 ). Therefore, he acknowledges that his actions

as set forth above resulted in the victim suffering bodily injury. Therefore, we must

examine whether there was sufficient evidence that Defendant attempted by physical

menace to put another in fear of imminent serious bodily injury

        Applying the sufficiency of the evidence standard set forth above, viewing the




                                         22
· evidence in this case in the light most favorable to the Commonwealth, and drawing all

reasonable inferences favorable to the Commonwealth, there is sufficient evidence to

find every element of the crime beyond a reasonable doubt. There is no question that

Defendant intentionally placed Ms. Benites in fear of imminent serious bodily injury

through the use of menacing or frightening activity.

        There were numerous physical altercations and struggles between Defendant

and the victim including struggling in her bedroom, master bathroom and powder room

before Defendant left the house. Ms. Benites locked the door knob and the deadbolt·

and probably believed the incident to be done. Defendant decided to violently crash

through her double locked front door, got in her face saying, "What now, bitch?" The

victim once again tried to escape his wrath and was holding onto the door jamb, as he

was trying to pull her back into the house. ·

        Instead of finally letting her go, Defendant grabbed her by the hair on the back of
                           I
her head and yanked as hard as he could, which tossed her to the floor on her tailbone.

 Did he stop at this point? · No. He continued to yell at her and kicked her so hard a

couple of times that she slid across the floor and hit the bottom of the table with the

back of her head. Did hestop at this point? No. As she was trying to crawl through the

dining room to escape him, he stood over her and squatted down toward her. As Ms.

Benites testified, when this was happening, she really thought she was going to die. She

had never seen such hatred and black in someone's eye_s. She really thought he was

going to kill her.

        Based upon the totality of the circumstances, it is abundantly clear that it was

Defendant's intention to place Ms. Benites in fear of imminent serious bodily injury




                                          23
through his use of menacing and frightening actions. Accordingly, it was proper for the

jury to find Defendant guilty of simple assault, pursuant to 18 Pa.C.S.A. § 2701 (a)(3).

Cross Examination:

       Dstendant's remaibing four issues oh appeal concern his request to cross examine
                          .                                   .
                          '
witnesses about an old ex-boyfriend of Ms. Benites.
                          '
       Defendant's third issue on appeal is that

       [t]he Court erred and abused its discretion by sustaining the
       Commonwealth's objection and denying Defendant the opportunity
       to cross-examine Jessica Benites on why she was concerned with
       telling her ex-boyfriend about the events which occurredbetween her
       and Defendant on July 21, 2013. This line of questioning is relevant
       to the case and its probative value outweighs any prejudicial value.
       The error complained of in this paragraph can be found at line 13 of
       page 130 through line 1 of page 131, in the notes of testimony dated·
       June 10, 2014.

       Defendant's fourth issue on appeal is that

       [t]he Court erred and abused its discretion by sustaining the
       Commonwealth's objection and denying Defendant the opportunity
       to cross-examine Jessica Benites on whether she told her sister,
       Hayley Campbell, that Ms. Benites was concerned with telling her
       ex-boyfriend about the events with Defendant on July 21, 2013.
       The Court also erred and abused its discretion by denying
       Defendant the opportunity to generally cross-examine Ms. Benites
       on why she was concerned with her ex-boyfriend knowing about
       the events with Defendant on July 21, 2013. This line of
       questioning is relevant to the case and its probative value
       outweighs any prejudicial value. The errors complained of in this
       paragraph can be found between line 9 on page 131 through llne
       15 on page 138 from the notes of testimony dated June 10, 2014.

       Defendant's fifth issue on appeal is that

       It]he Court erred and abused its discretion by denying Defendant
       the opportunity to cross-examine Hayley Campbell as to her state
       of mind and what she told Jessica Benites concerning whether Ms.
       Benites should tell her ex-boyfriend about Defendant staying with
       Ms. Benites on July 21, 2013. This line of questioning is relevant to
       the case and its probative value outweighs any prejudicial value.



                                         24
       The error complained of in this paragraph can be found between
       line 23 on page 217 through line 15 on page 225 from the notes of
       testimony dated June 10, 2014.

       Defendant's sixth issue on appeal is that

       [t]he Court erred and abused Its discretion by sustaining the
       Commonwealth's objection and denying Defendant the opportunity
       to cross-examine Hayley Campbell as to whether Jessica Benites
     · stayed with Ms. Benites' ex-boyfriend on July 21, 2013 or shortly
       thereafter. This line of questioning is relevant to the case and its.
       probative value is not outweighed ·by the prejudicial value. The
       error complained of in this paragraph can be found between line 7
       on page 22~ through line 15 on page 233 from the notes of
       testimony dated June.10, ·2014.

       Pennsylvania law is well established in that.'1'[t]he admissibility of evidence is a

matter for the discretion of the trial court and a ruling thereon will be reversed on appeal

only upon a showing that the trial court committed an.abuse of discretion."'

Commonwealth v. Towles, 2014 WL 5094266, 7 (Pa.2014), quoting Commonwealth v.

Johnson, 42 A.3d 1017 (Pa. 2012), quoting Commonwealth v. Sherwood, 982 A.2d
                           .                                        \




483, 495 (Pa. 2009). '"A trial court has broad discretion to determine whether evidence

is admissible," and a trial court's ruling regarding the admission of evidence "will not be

disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support to be clearly erroneous."'

Commonwealth v. Belani, 2014 WL 4748045, 3 (Pa.Super. 2014), quoting

Commonwealth v. Huggins, .68 A.3d 962, 966 (Pa.Super. 2~13), app. denied, 80 A.3d

775 (Pa. 2013); and Commonwealth v. Minich, 4 A.3d 1063 (Pa.Super. 2010).

       "In deciding admissibility of other acts, 'the trial court is obliged to balance the

probative value of such evidence against its prejudicial impact." Towles, 2014 WL

5094266, 8, quoting Sherwood, 982 A.2d at 497.         First, evidence must be relevant




                                           25
 before it can be considered for admission. Pa.RE. 402 states that "[a]ll relevant

 evidence is admissible, except as otherwise provided by law. Evidence that is not

 relevant is not admissible."

        Evidence of a relationship Ms. Benites has with Mo, an ex-boyfriend prior to the

 night of the incident, is not relevant to assis_t the jury in deciding the action~ Defendant

took that night. Even if Defendant was upset with the victim regarding her relationships

· with others, the only thing the jury could have gleaned from the evidence was a motive

 for Defendant's outrageous actions. Introducing that testimony would have been

 prejudicial to Defendant.

        In addition, the evidence as to the discussions Ms. Benites had with her sister

 about how much to tell Mo about what Defendant did to Ms. Benities is ·also not

· relevant. These discussions took place after Defendant completed his actions. How

 another person would react to the news has no bearing on what Defendant did or did

 not do. Finally, where the victim stayed in the days following_ the incident also has no

 probative value and is not relevant to prove the actions Defendant took at the time-of

 the incident.

        It must also be pointed out that Defendant was attempting to admit some

 evidence about Mo, without allowing the jury to hear the entire context of the evidence.

There was evidence that when the victim fell asleep, Defendant entered her bedroom,

 removed her underwear, perhaps ehgaged in some inappropriate conduct and then

 threw her underwear in her face. (N.T., 6/9/14, p. 5-7). The jury did not hear this

 evidence.




                                           26
       Much of this evidence came from text messages between the victim and her

sister. At a pretrial hearing on June 9, 2014, this court ruled that this evidence and text

messages were not admissible in evidence unless Defendant opened the door via his

cross examination because the probative value was outweighed by the prejudicial

effect. Some examples included a text message from the victim to her sister asking if

she should tell Mo about the fact that Defendant "basically, molested me in my own
                         '
drunken stupor?" and "I know he did stuff to me while I was half asleep." (N.T., 6/9/14,
                             I                                         .

pgs. 63 and 71).

       The arguments and court rulings regarding these evidentiary lssues can be

found in the following three sidebar discussions between the court and counsel:

              THE COURT: What are you talking about?
              MR. BAYLARIAN: I am talking about Text Message 16.
              THE COURT: Oh, they are· numbered?
              MR. BAYLARIAN: And it says, I don't know what to tell Mo
       about it 'all."
              THE COURT: 16, here?
              MS. LEIGH: No, no, you're right.
              THE COURT: Says, 11Yes, he staying at my feet."
              MS. LEIGH: That's a reference to the dog.
              THE COURT: IDK-
              MR. BAYLARIAN: What to tell Mo.
              I don't intend -
              THE COURT: Okay. We're reading the time line, goes from
       bottom to the top; right?
              MR. BAYLARIAN: Yes. Lower number, that text message is
       later in time.
               THE.COURT: Got it. Give me a second.
               MS. LEIGH: Your Honor, the conversation, if you continue to
       read, very clearly, deals with the statement that your Honor has
       already ruled inadmissible.
               So it says, excuse me, "I don't know what to tell Mo about it
       all. I have a huge bruise on my ankle."
               And "I wouldn't tell him you let him stay."
               "I don't intend to, but what's gonna sound feasible."
               Then I guess it continues, "He showed up at our place in a·
       drunken, angry stupor and kicked the door down."



                                         27
        "Do I tell him about the fact that" - I don't' think, given the
fact that Mr. Baylarian is asking about this conversation, that you
can take it out of context without the entire conversation. If he ·
wants to get into it, I believe that opens the door.
        MR. BAYLARIAN: I don't need the whole conversatlon, your
Honor. I am going to go prior to.                   ·
        THE COURT: Which lines are you trying to put in?
        MR. BAYLARJAN: The only lines that would be relevant
would be Line 16 through Line 13. I am not getting - I am not
getting past that.
        MS. LEIGH: Well, I think it opens the door then for me to
ask, why do you think Mo would be upset knowing the whole story?
        MR. BAYLARIAN: We are talking, specifically, about, she
says, "Don't tell him you let him stay." That's it. That's. the context of
the conversation at that point, the full context of the conversation·
up to that point.
        MS. LEIGH: But that's not the full context of the ·
conversation, if you read the following line.
        THE COURT: The conversation before this, are there lines
here which talk about the underwear and the concern that- see,
50, would have happened earlier in time.
        MS. LEIGH:. Before that.        .
        MR. BAYLARIAN: 50 was at 12:53. 16 would have been -
        MS. LEIGH: Whatwas before that, 16, so that's 4:53 a.m.
        MR. BAYLARIAN: 4:53 p.m.
        MS. LEIGH: You're right.
        MR. BAYLARIAN: And 16-
        THE COURT: Here's the situation.
        MR. BAYLARIAN: 7:30 p.m.
        THE COURT: Okay. Here's the situation, Mr. Baylarian.
        You are worried about certain matters coming in here. The
Commonwealth agrees they can live without bringing them in. You
are trying to cherrypick- whoever this Mo is is someone that it's
not just the issue of this man being in the house that night. I would
think she would be worried about all of this. She thinks that maybe
she was molested. "I know he did stuff to me, too, while I was half .
asleep. I got a couple marks on my chest. That's what really set the
whole thing off. I woke up, like, fully with him suddenly throwing my
underwear in my face, which I was wearing when I laid down."
        I think maybe that's something she doesn't know whether to
tell Mo or not.
        MR. BAYLARIAN: But her sister specifically -
        THE COURT: And immediately afterwards, do I tell him
about the fact that he basically- when she says, "I don't know what
to tell Mo." A couple lines later she says, "Do I tell him about the
fact that he, basically, molested me in my own drunken stupor."



                                   28
                 Doe$ she say that?
               . MR BAYLARIAN: What do you mean?
                 THE COURT: That's what she is thinking.
                 So I don't thlnk that you say, what about Mo, is kind of hog
       tying the Commonwealth in saying, why were you so ·upset about
       talking to Mo? Bec~use I think I was molested that night. Because I
       woke up with him ~ver me after he threw my underwear in my face,
       this and that.         ·
                 To me, you might be opening the door here, so you make a
       decision if you want all of that to come in, or some of it.
                 MS. LEIGH:. I would also point out, as Mr. Barraza did to me,
       Rule 106, that if an adverse party requests part of a writing, the
       other party is entitled to the introduction of the rest of it. In fairness,
     . the context of the conversation has to be included to the jury. If she
       is saying she is afrai.d of Mo.finding out about the bruises, about
       the sexual portion of it, I don't think that you can extractone part of
       the comments and not include the other.
                 THE COURT: My issue is it fair for you to be making it look
       like she is afraid to say that she let him stay there, when actually,
       she is probably afraid of the whole situation, telling Mo. It's a
       terrible thing that is set down here in this transcript of text
       messages.
                 MR. BAYLARIAN: But I think that she afraid to say that he
       stayed with her, talking about her relationship.                          .
                 THE COURT: She might be. When you open that door, they
       are going to be able to get into this other stuff. Soyou decide
       whether it's worth it. I don't think it is: It just doesn't seem correct.
                 If you want to take this away, ask her, well, what was your
       relationship with Mo, I don't know what it was, that's a question
       about why wasn't Mo there, if he was your boyfriend. 1. don't know.
                 But you want to get into these texts, it's a. distortion to say
       that 'that's - I don't know what to tell Mo about it all. The word is all.
       So if you get into that, you are opening the door.
                 MR. BAYLARIAN: But, then, she follows it up with, I have a
       huge bruise on my ankle. She's not talking about -
                 THE COURT: I have ruled.
                 MR. BAYLARIAN: Okay.

(N.T., 6/10/14, pgs. 132-138).

      THE COURT: Yes. What is your objection?
           MR. BAYLARIAN: There's no objection.
           I just want to make sure, I would like to cross-examine Miss
      campbell as far as Mo goes, so I just-
           THE COURT: As far as Mo goes? Didn't we go over this
       already?



                                           29
         MS. LEIGH·: She hasn't even mentioned Mo.
         MR. BAYLARIAN: Right. But she knows who he is.
         THE COURT: Isn't that beyond the scope of direct?
         MR. B.AYLARIAN: No such thing as far as beyond the
scope when \t comes to cross-examination by the defense counsel.
 It's cross-examination. It's not objectionable.
         THE COURT: On anything?
         MR. BAYLARIAN: Yes, as long as it is relevant.
         THE COURT:· Okay.
         MR. BAYLARIAN: So -
         MS. LEIGH: But I would argue the relevance of it, then.
         THE COURT: What are you - let me just see what she said.
         He broke down the door and attacked her and stole her car.
         MS. LEIGH:. Which was not a word for word recitation of
what the text sald. .                                      .
         THE COURT: Oh1 I know. .                       .
         MR. BAYLARIAN: It's not impeachment. The only thing that
the= only text that: I want to bring out, I don't even want to bring it
out-                   ·
         THE COURT: What line?
         MR. BAYLARIAN: Line 15.
         THE COURT: Fifteen or 115?
         MR. BAYLARIAN: 15.
         I am not even bringing up the text. It may come out if she
says she doesn't - she did not tell him.                     ·        ·
         I will give my offer. I would just ask her, did you ever tell your
sister Jessica Benites that you should not tell Mo that Herb stayed
with you.
         If she says no, well, then I will refresh her recollection or
impeach her with that-one instance.
         All I am trying to get out is her statement, her state of mind
at the time that she should not be telling Mo that Herb was around.
         THE COURT: What does that-what does the sister's state
of mind have to do with it?
         MR. BAYLARIAN:· Because it shows that she was
concerned that Jessica should not say anything to Mo, which
indirectly shows -           ·
         MS. LEIGH:: What?
         MR. BAYLARIAN: That they were concerned about Mo
finding out. about Merb being there.
         MS. LEIGH: In that case, your Honor -
         THE COURT: Nb. I believe that that's collateral,·the sister's
                         J
opinion of whetherMo should be in or not. We talked about what
the victim said about Mo. And I told you where I would let them go
if that was opened.
         MR. BAYLARIAN: Right.



                                    30
         THE COURT: The sister's opinion of what to do about Mo
  isn't relevant; is it?.
          MR. BAYLARIAN: I believe that it is. Because it shows a
· motive and bias by the victim.
          MS. LEIGH: I would say, if that was permitted, I would
  follow up with why did you not want to tell Mo.
           My offer is that they would testify that they were afraid that
  Mo would become:extremely upset with Mr. Mercado, if he knew
  what had happened.                    ·
           MR. BAYLARIAN: This specific statement doesn't tell him
 that.
          MS. LEIGH: It is has to be put in context.
          THE COURT: In. response to the victim's concern, I don't
  know what to tell Mo about it at all, arid prevlously she talked about
  the sexual nature of their encounter, ifthere was one. · So she
  talked about her underpants being thrown in her face, et cetera.
          So she said that. And the fact that her sister says, well, don't
  tell him he was there. I won't tell him you lef him stay.
          MR. BAYLARIAN:· Right.
          THE COURT: That would be a good cover up for the big
  problem. That's how:.... that's what I look at here, Mr. Baylarian. You
  don't have much to work with, but I'm not going to create things that
  aren't so. That's the problem.                                ·
          And you're making every effort that you can, but I just think
  that's misleading. Then that will leave the inference that, Mo's got a
  temper, and she has got another boyfriend, et cetera. But the real
  issue is, I don't care if she does have another boyfriend. But if this
  man found out about the 'really bad stuff that's in this transcript,
  which it's not in the record, so again it was -
          MR. ·sAYLARIAN: The relationship would be off.
          THE COURT: No. 111 know he did stuff to me while I was half
. asleep." This is the victim talking to her sister about what the
  defendant did'. I got.a couple marks on my chest. That's what really
  sets the whole thing off. "I woke up like fully with him suddenly
  throwing my underwear in my fact which I was wearing when I-laid
  down." Somewhere·else it says boxer shorts. That's in the written
 statement.
         So if you are going to get into Mo, the real issue is, she
 doesn't know what to tell him about it all. The girlfriend said, I don't
 know, yes, she said, yes, he is staying at my feet. I don't know what
 to tell Mo about it all. I have a huge bruise on my ankle. She is
 worried about Mo hearing about this whole thing. And the whole
 thing's not just partial stuff.·
         Do you have .anything to add, Miss Thompson?
         MS. THOMPSON: No.
         THE COURT: That's fine.



                                     31
              MS. THOMPSON: I understand the Court's and
      Commonwealth's perspective, as far as looking at one part then. If
      we could make - if we could structure it as broadly as, I am not
      sure how we would do it without opening that.                    · ·
              MR. BAYLARIAN: . Can I just ask the simple - I don't have .to
      refer to the texts. I can just say, did you ever tell her not to tell
      anything to Mo? ·.      ··
              THE COURT: And why did you tell her that?·
              MS. LEIGH: Exactly.
              THE COURT: I don't think it's a safe place for you to go.
              MR BAYLARIAN: Can I ask about Mo at all? Just who he
      is, and if theywere together at the time?
              MS. LEIGH: I mean -
              MR. BAYLARIAN: Again, I think-
              THE COURT: You can say because does she have a
      boyfriend named Mo, something like that, is that what you mean?
              MR. BAY~RIAN: Yeah. At the time, or was in a
      relationship with Mo at the time. That's· it.
              MS. LEIGH: I think that's a legitimate question, your Honor.
      They can ask whether she was in a relationship with somebody. If it
      goes to a motive only issue, we have - obviously, impeachment
      with this stuff becomes issues of completeness and context.·
              THE COURT: Right.
              MR. BAYLARIAN: There is -
              MR. BARRAZA: There is the issue with context with that
      question.  .
             THE COURT: Okay.
             MR. BAYLARIAN: Your Honor's ruling I can't use the text.·
       cannot use the text.      .
               THE COURT: You can't use any of her advice to her about
       don't tell Mo. That's arrives as a text, the new technology is
       teaching us, the texts bring a whole new element to all of this.
                            1
      ·okey.                                   ·




(N.T., 6/10/14, pgs. 218-225).
                          '
              MR. BAYLARIAN: Judge, I want to be able to ask potentially
       on the response whether or not Jessica stayed with Mo after these
       events. So when I say after these events -
              THE COURT: You mean that night?
              MR. BAYLARIAN: Two days later, three days later, four
       days later.
              THE COUR1": Any response? Any objection to that?
              MS. LEIGH: I do object, your Honor. I don't see how it's
       relevant. I believe she has already testified that she stayed at her




                                        32
house, her own house, that Mr. Dubin came over and she got some ·
sleep.              ·
        What she did next, the. next night, the next night, I don't
really see how that's relevant.
        MR. BAYLARIAN: She testified there was no relationship
with Mo.
         MS. LEIGH:. No romantic relationship. She knew who he·
was. I believe said they-
         THE COURT: I don't even remember. what she said.
         MR. BAYLARIAN: Ex~boyfriend. She said Mo was.
         THE COURT: She said Mo, ex~boyfriend:
         MR. BAYLARIAN: I asked if they were in relationship at the
time. And she said, no.                      ·
        'THE COURT: What are you going to ask the sister?
         MR. BA YLARIAN: I am going to ask her whether she knows
Mo. Who is Mo to Jessica?                    ·                   ·
         THE COURT: I didn't hear that part before.
         MR. BAYLARIAN: Well'.'"" but lt'sa long those lines.
         THE COURT: Well, let's get it specific. I didn't write it down.
 Maybe I did. I should have. I am getting tired. Does she know Mo?
         MR. BAYLARIAN: Yes.                                 . .       .
         THE COURT: How do you know Mo?
         MR. BAYLARIAN: Yes.
         THE COURT: Okay.
    .    MR. BAYLARIAN: And then if she says, no, to those things,
I may ask - well, also what was the relationship on July   zo"     and
2151 of-2013 betwee.n Mo' and Jess?
         THE COURT: If you know.
         MR. BAYLARIAN: If she says yes.
         THE COURT: If she says yes to whether she knows Mo?
         MR. BAYLARIAN: Whether she knows Mo and whether -
well, I am going to ask, how do you know Mo.
         THE COURT:. What was the relationship between on July
20th_                 .
         MR. BAYLARIAN: 20, 21 or thereabouts.
         THE COURT: 20 to 21, if you know.
         What else did you want to ask?
         MR. BAYLARIAN: If whether Jess stayed with Mo
afterwards potentially. I don't know if I am going to ask that.
         THE COURT: No. It just doesn't feel right. It doesn't seem
relevant. And it seems to be attacking the victim's relationship with
other people. And ws have got a broken door frame and we have
bruises here. So I am really trying to focus on what happened this
night.
         MR BAYLARIAN: And I am focusing on -




                                   33
        THE COURT: You are trying to say they were lies, the
broken door frame and bruises?                         ·
       .MR BAYLARIAN: I didn't say that. I am arguing the bruises.
I am not arguing the broken door frame. I am arguing a lot of other
things not necessarily true.
        THE COURT: Do you have any concern about appellate
issues if I say no to whether she stayed with Mo later that week?
        MS. LEIGH: If you say, no, it-
        THE COURT: Yes, if I say no, that's not coming in.
        MS. LEIGH: . No, your Honor. I don't see how what she did
days later is relevant. Further, I think if the question is asked, did
she stay there, my follow up will be, why did she stay ther~? Every
indication that I have will be that her answer is going to be, I was
afraid he was going to come back. I didn't know what he was going
to do. I thought he was going to hurt me.                        ·
        THE COURT: We can drag this out another whole day.
        ls this your last witness?
        MS. LEIGH:. No.
        THE COURT: Howmany more?
        MS. LEIGH: We have Mr. Dubin and another officer.
        MR. BAYLARIAN: I am actually okay.
        THE COURT: Are you fishing, or 'do you know that she was
staying with this guy?
       MR. BAYLARIAN:. It's in the texts.
       THE. COURT: What's in the texts that she stayed with him
that week?           .                   ·.       .
       MR. BAYLARIAN: 40 days, "Are you going to Me's?", which
is from Hayley.
       THE COURT: I, frankly, didn't read all of this. Because I
thought we had disposed of it.
       MR. BAYLARIAN: Then she questions, \less?" says, Jess
                   11
response, "Yes.       '
       MS. LEIGH: ·well, that statement that says a future intent,
"Are you going to M,o's?11 Yes. That doesn't say that she 'is there,
that she slept there; how many nights.she slept there. And the
information from the text is hearsay as well at this point.
       I don't know how Mr. Baylarian ls going to get that in, other
than, again, if he·is asking factual.questions of a witness, then my
factual -
       THE COURT: No, I just wondered if he was just fishing.
        MR. BAYLARIAN·: I am not asking if you texted her, just
generally, did she stay at Mo's, or intend to stay at Mo's.
        MS. LEIGH: Then, again, I think that night, okay, that's a
reasonable question. But I would still ask the follow up as to why.
        MR. BAYLARIAN: I am fine if she is. going to say because
jess was afraid.



                                  34
                 MS. LEIGH: Well, I would probably recall Jessica to say
        .that.
                   MR. BAYLARIAN: . That's fine.
                   THE COURT: All right. Let's bring them down.
                   You can say, do you know Mo? How do you know him?
        What was the relationship between the victim and Mo on July 201h,
        21 , if I know?                                        ·
                   I don't know what she is going to say. If you feel ·compelled .
        to say, did she stay at Mo's later that week, it's just - no, we're not
        getting into that. That's not relevant. We're getting off on a tangent.
                 . MR. BAYlARIAN: That's denied?                 .              .
                   THE COURT: What? Yes. Don't go down that path. We
        have to keep this reasonable.
         .         And who knows what we'll hear. Maybe they were an item
        back - they were back on, I don't know.                    · ·
                   I will let you ask those three questions. Know him, how and
        relationship, if you know, between the two of them on that
        weekend.

(N.T., 6/10/14, pgs. 227-233).

        As set forth in the above sidebar exchanges between counsel and the court,

Defendant's request to take this evidence out of context was appropriately denied. If

Defendant opened the door to questioning in this context, the evidence about possible

inappropriate sexual contact would have been admissible to explain why the vlctlm

hesitated in telling Mo everything that Defendant did to her that night. This evidence

could have been extremely prejudicial to Defendant         By not getting into the issue of

Mo, it focused the scope of the trial on the events of the altercations charged in the

information.     Therefore, excluding all of this evidence was proper and Defendant's

allegations on appeal are 'without merit.

                                             BY THE COURT:




DATE:   1/ /~}JS-
             I


                                            35   Deputy Clotk of Common Pleas Cou t
