J-A23006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
JEFFREY COBBS, JR.,                         :
                                            :
                   Appellant                :           No. 936 WDA 2014

        Appeal from the Judgment of Sentence entered on May 2, 2014
             in the Court of Common Pleas of Allegheny County,
                Criminal Division, No. CP-02-CR-0001691-2013

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED September 1, 2015

        Jeffrey Cobbs, Jr. (“Cobbs”), appeals from the judgment of sentence

imposed following his convictions of simple assault, terroristic threats, and

the summary offense of criminal mischief.1 We affirm.

        The trial court set forth the relevant facts underlying this appeal as

follows:

               On October 30, 2012, Sarah Cobbs (“Ms. Cobbs”) was at
        her residence making Halloween decorations for her daughter’s
        elementary school class.       Although she and [Cobbs], her
        husband, both owned the residence, she was estranged from
        [Cobbs] and she resided there with her three children. [Cobbs]
        resided elsewhere. She was eight months pregnant and [Cobbs]
        was the father of the child. Their three young children were
        sleeping in the residence. She had called [Cobbs] a couple times
        earlier in the day to ask him if he could watch their children due
        to the fact that their nanny was ill. When she and [Cobbs]
        finally spoke on the phone, the conversation became heated.
        Both Ms. Cobbs and [Cobbs] began attacking each other over
        their romantic relationships with other people. The conversation

1
    See 18 Pa.C.S.A. §§ 2701(a), 2706(a)(1), 3304(a)(2).
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     became extremely heated when Ms. Cobbs told [Cobbs] that she
     was sleeping with another person. [Cobbs] abruptly hung up the
     telephone.     Shortly thereafter, [Cobbs] appeared at the
     residence and he was very angry and agitated. He began
     accusing her of having sexual relations with someone else and
     he placed his hands around Ms. Cobb[s]’s neck and began
     choking her while she was sitting on the couch. She was unable
     to breathe. He began to push her down into the arm of the
     couch. Ms. Cobb[s] was unable to breathe and she “started to
     see black spots everywhere.” Ms. Cobbs believed she was going
     to die. [Cobbs] stopped choking her and walked across the
     room. He continued ranting about her sexual relations with
     another person. [Cobbs] became more and more angry and
     picked up pumpkins[,] which were in the house as decorations[,]
     and he began throwing the pumpkins around the house.
     [Cobbs] then came back at Ms. Cobbs and started choking her
     again. He demanded that she produce her cell phone. After
     about ten to fifteen seconds, [Cobbs] backed off. He continued
     berating Ms. Cobbs, calling her “a dirty whore.” He then walked
     over to the couch where she was sitting and he flipped the couch
     over. Ms. Cobbs struck her head on the wall. Her abdominal
     area also struck the wall. [Cobbs] then called Ms. Cobbs[’s]
     mother and told her to come get Ms. Cobbs. He repeatedly
     stated that Ms. Cobbs would “be leaving in a body bag” if Ms.
     Cobbs’[s] mother didn’t come pick her up. Ms. Cobbs was
     wedged between the couch and the wall and she heard her
     children begin to cry. She believed she was going to die. After
     [Cobbs] ended the phone conversation with Ms. Cobbs’[s]
     mother, he grabbed Ms. Cobbs by her hair and began pulling her
     from behind the couch. While he was pulling her, he repeatedly
     punched her in the head. [Cobbs] began demanding that Ms.
     Cobbs identify the person with whom she was having romantic
     relations. Ms. Cobbs refused to identify the individual. [Cobbs]
     then ordered Ms. Cobbs to leave the residence. Ms. Cobbs
     indicated that she would leave but she wanted to take the
     children with her. [Cobbs] would not permit the children to
     leave. Ms. Cobbs began putting her shoes on to leave[, after
     which Cobbs] changed course and would not let her leave. He
     pushed her down into a chair.

          At this point, there was a knock on the door. [Cobbs’s]
     son and his girlfriend, Allison Didaro, arrived at the residence.
     They had been called by Ms. Cobb[s]’s mother. Arrangements
     were made for Allison Didaro to take care of the children.
     [Cobbs’s] son attempted to calm [Cobbs]. [Cobbs] then started

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      to walk out of the house. Ms. Cobbs followed [Cobbs,] and he
      told her that he would break every window of her automobile
      unless she identified her paramour. While outside, [Cobbs]
      picked up a large piece of cement and used it to repeatedly
      strike the windshield of Ms. Cobb[s]’s automobile until it
      cracked.     He then threw the piece of cement through the
      windshield. [Cobbs] then came back into the house and told Ms.
      Cobbs that she can’t keep playing games with him. [Cobbs]
      specifically stated “This is our life and I could have killed you.”
      He indicated that he would “spend the rest of his life making this
      up to you.” [Cobbs] then said goodbye to his children and left
      the residence. After [Cobbs] had been gone about ten minutes,
      Ms. Cobb[s]’s mother arrived at the residence. Ms. Cobbs went
      to the hospital with Allison Didaro and [Cobbs’s] son. She was
      treated and released.

             At trial, Marcie Riecks [“Riecks”], one of [Cobbs’s] former
      lovers, testified that [Cobbs] called her on the evening of
      October 30, 2012. She and [Cobbs] had been involved in a
      relationship until 2002[,] but they had resolved their differences
      in 2012[,] and began speaking again. During the telephone call
      on the night of the incident in question …, [Cobbs] was very
      distraught and told [] Riecks that he had choked Ms. Cobbs and
      that “her eyes were bugging out of her head.” He also told []
      Riecks that he thought he had killed Ms. Cobbs.

            [Cobbs] testified in his own defense. He denied assaulting
      Ms. Cobbs.      He described the entire incident[,] and his
      description involved an angry argument but no physical contact.
      [Cobbs’s] son testified that he did not observe an assault nor did
      he observe any damage to Ms. Cobb[s]’s vehicle. He testified
      that when he arrived at the residence, [Cobbs] was angry. His
      son testified that [Cobbs] calmed down and left the residence.
      [Cobbs] also presented character witnesses.

Trial Court Opinion, 1/14/15, at 2-4.

      A few months after the assault, the Commonwealth charged Cobbs

with aggravated assault, false imprisonment, terroristic threats and criminal

mischief. The matter proceeded to a non-jury trial, at the close of which the

trial court acquitted Cobbs of aggravated assault and false imprisonment,



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but found him guilty of simple assault, terroristic threats and criminal

mischief. Immediately after trial, the trial court sentenced Cobbs to serve

five years of probation for his conviction of terroristic threats, and imposed

no further sentence as to the remaining convictions.     Cobbs timely filed a

post-sentence Motion, challenging the weight of the evidence and the trial

court’s ruling concerning a Commonwealth objection at trial. The trial court

denied the post-sentence Motion, after which Cobbs filed a timely Notice of

Appeal.

      Cobbs presents the following issues for our review:

       1. Whether the verdicts of guilty as to simple assault and
          terroristic threats were against the weight of the evidence
          where the Commonwealth’s key witnesses blatantly
          contradicted each other[,] and the trial court found that
          [Ms. Cobbs] was not credible on her claim that [Cobbs]
          choked her with considerable force?

       2. Whether the trial court erred in sustaining the
          Commonwealth’s objection to non-leading questions, as
          leading, where said questions were directed to [Cobbs] to
          permit him to address the Commonwealth’s key allegations
          against him?

Brief for Appellant at 4.

      Cobbs first argues that his convictions of simple assault and terroristic

threats were against the weight of the evidence and must be overturned.

Id. at 17-19.

      Our standard in reviewing a weight of the evidence claim is as follows:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,

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      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

      Relief on a weight of the evidence claim is reserved for
      extraordinary circumstances, when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail. On appeal, [an appellate] Court
      cannot substitute its judgment for that of the [fact-finder] on
      issues of credibility, or that of the trial judge respecting weight.
      Our review is limited to determining whether the trial court
      abused its discretion[.]

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and

quotation marks omitted).

      According to Cobbs, “[t]o find [Ms.] Cobbs’[s] testimony credible,

where she had not one single objectively[-]determined injury, shocks the

conscience.”   Brief for Appellant at 19; see also id. at 18 (alleging that

there was no indication of any injury to Ms. Cobbs in either her hospital

records or the photographs taken of her after the assault, which were

presented at trial). Additionally, Cobbs avers that the trial court disbelieved

the portion of Ms. Cobbs’s version of the assault whereby she testified that

Cobbs choked her nearly to the point of unconsciousness. Id. at 19; see

also N.T., 5/2/14, at 74 (wherein the trial court stated that “[t]he hospital

records do not support, from a clinical evaluation standpoint, the testimony

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of [Ms. Cobbs] being choked to the point of unconsciousness. And the way

[Ms. Cobbs] described that, the [c]ourt finds it very hard to believe there

would be no marks on her neck.”). Cobbs asserts that “[f]or the trial court

to find that [Ms.] Cobbs was not credible with respect to her testimony about

the force with which she was allegedly choked, but find [that] Riecks was

credible in testifying that [Cobbs] cho[]ked [Ms.] Cobbs with such force,

shocks the conscience.” Brief for Appellant at 19.2

     The trial court addressed Cobbs’s challenge to the weight of the

evidence as follows:

            [Cobbs’s] weight claims essentially challenge this [c]ourt’s
     assessment of [the] credibility of Ms. Cobbs and [] Riecks.
     [Cobbs’s] argument is that this [c]ourt should not have rendered
     a guilty verdict of simple assault because of comments it made
     about Ms. Cobbs[’s] testimony[,] and because [] Riecks was
     [allegedly] not credible.      This [c]ourt clearly believed [that
     Cobbs] choked and struck Ms. Cobbs[,] and thus found [him]
     guilty of simple assault. Relying on the medical records, this
     [c]ourt did not believe, however, that the choking described by
     Ms. Cobbs rose to the level of aggravated assault. This [c]ourt,
     likewise, determined that the testimony of [] Riecks was
     credible. Inasmuch as [Cobbs’s] weight claim concedes that the
     evidence was sufficient to convict [him] of simple assault[,] and
     [] a weight of the evidence claim cannot be based on a challenge
     to the [c]ourt’s credibility determinations, [Cobbs’s] weight claim
     fails. This [c]ourt did not credit [Cobbs’s] version of events and
     … was well within its province to make that assessment. The

2
   Though Cobbs’s Statement of Questions Presented purports to challenge
his conviction of terroristic threats in connection with his weight claim, he
fails to raise any claims in his Argument section which could pertain to that
conviction. See Pa.R.A.P. 2119(a). Additionally, Cobbs did not address, in
his Pa.R.A.P. 1925(b) Concise Statement, how his conviction of terroristic
threats was against the weight of the evidence. Based upon this defect, the
trial court concluded that Cobbs waived his claim. Trial Court Opinion,
1/14/15, at 8 n.1 (citing Commonwealth v. Williams, 959 A.2d 1252,
1257-58 (Pa. Super. 2008)). We agree with the trial court’s conclusion.

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      trial evidence presented by the Commonwealth … was credible,
      competent and reliable[,] and established every element of
      simple assault. This [c]ourt has reviewed the trial record and
      believes that the verdict does not shock any rational sense of
      justice and, therefore, the verdict was not against the weight of
      the evidence.

Trial Court Opinion, 1/14/15, at 6-7.

      We agree with the trial court’s foregoing analysis and conclusion,

mindful that we may not disturb the court’s credibility determinations or

substitute our judgment for that of the fact-finder. See Sanchez, supra.

Moreover, contrary to Cobbs’s claim, the trial court’s finding that a portion of

Ms. Cobbs’s account of the assault was not credible in no way undermines

the court’s other credibility determinations or the adequacy of the evidence

supporting Cobbs’s convictions.     See Commonwealth v. Schmohl, 975

A.2d 1144, 1147 (Pa. Super. 2009) (stating that “the trier of fact[,] while

passing upon the credibility of witnesses and the weight of the evidence

produced, is free to believe all, part or none of the evidence.”) (citation

omitted).   Cobbs essentially asks us to reweigh the evidence, which our

standard of review prohibits.      See id.; see also Commonwealth v.

Santiago, 980 A.2d 659, 664 (Pa. Super. 2009) (holding that the trial court

properly exercised its discretion in denying a weight challenge where

appellant asked this Court to reweigh the evidence).      Furthermore, to the

extent that there were purported conflicts in the testimony of Ms. Cobbs and

Riecks, the trial court assessed the weight, if any, to be given this evidence.

See Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011)



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(stating that it is exclusively the province of the fact-finder to determine the

weight to be accorded conflicting evidence).       Accordingly, we discern no

abuse by the trial court in rejecting Cobbs’s challenge to the weight of the

evidence.

      Next, Cobbs argues that the trial court committed reversible error in

its evidentiary rulings during defense counsel’s direct examination of Cobbs,

ruling that counsel’s questions were leading.3 See Brief for Appellant at 20-

24.   According to Cobbs, the trial court’s sustaining of the prosecution’s

objections   to   defense   counsel’s line   of questioning   violated   Cobbs’s

constitutional rights to be heard and adequately respond to the charges

against him. Id. at 23.

      “The trial judge has wide discretion in controlling the use of leading

questions. The court’s tolerance or intolerance for leading questions will not

be reversed on appeal absent an abuse of discretion.” Commonwealth v.

Fransen, 42 A.3d 1100, 1116 (Pa. Super. 2012) (en banc) (citation

omitted).    The Pennsylvania Rules of Evidence provide that “[l]eading

questions should not be used on direct or redirect examination except as

necessary to develop the witness’s testimony.”        Pa.R.E. 611(c); see also

Chambers, 599 A.2d at 640 (stating that “[t]he rule that a party calling a

witness is not permitted to ask leading questions … is [to be] liberally

construed in modern practice.”) (citation omitted).

3
  “A leading question is one which puts the desired answer in the mouth of
the witness.” Commonwealth v. Chambers, 599 A.2d 630, 640 (Pa.
1991).

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     Cobbs challenges the trial court’s sustaining of the Commonwealth’s

objections during the following exchange:

     Q. [Defense counsel]: And when you got there[, i.e., Ms.
     Cobbs’s home,] what happened?

     A. [Cobbs]: I proceeded to yell, scream. I was completely
     agitated at the fact that she [Ms. Cobbs] would do this while
     pregnant. It was just repulsive to me.

     Q. All right. Did she scream back?

     A. No she didn’t. She sat there. She cried.

     Q. At any point in time did you hit her or strike her?

     A. No.

     Q. At any point in time did you flip her on the couch?

     A. No.

     Q. Did you ever have physical contact with her at that time?

     [The prosecutor]: Your Honor –

     A. No.

     [The prosecutor]: This is all leading questions.

     THE COURT: Is that an objection?

     [The prosecutor]: Objection. Leading.

     THE COURT: I know I am a stickler for doing things according to
     procedure, but particularly after certain events have occurred
     yesterday and this morning in another matter, I’m going to be
     worse, not better, for being a stickler for doing it by the book.
     Objection sustained.

     [Defense counsel]: Okay.

     Q. [Defense counsel]: Did you assault her?



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      A. [Cobbs]: I did not.

      [Defense counsel]: I don’t see how that’s leading.

      THE COURT: He [the prosecutor] just stood up. Maybe he’s
      tired of sitting. He didn’t say anything. Mr. Petulla, [i.e., the
      prosecutor,] do you wish to be heard?

      [The prosecutor]: Your Honor, that – objection. Leading. What
      happened –

      THE COURT: Technically, he’s right. Sustained.             “Did you
      assault her” is leading a little bit, just a little bit.

      [Defense counsel]: It doesn’t suggest an answer. He could say
      yes, or he could say no.

      THE COURT: Well, it doesn’t suggest an answer, but it suggests
      the issue of assault as opposed to what happened between
      them.

N.T., 5/2/14, at 10-12.

      Cobbs argues as follows concerning the trial court’s above rulings:

      The questions put to [Cobbs], which were objected to as leading,
      were not leading. … [Cobbs] understands that one might view
      this issue as one vested in the sound discretion of the trial court.
      [Cobbs] submits that the trial court had no discretion to be
      legally incorrect.    Secondly, the second objection by the
      Commonwealth was that the question was leading. The trial
      court agreed that such was not leading[,] but sustained the
      objection. This was an abuse of discretion.

Brief for Appellant at 24.

      Upon review of the record, we discern no reversible error in the trial

court’s rulings.   The rulings also did not prevent Cobbs from adequately

responding to the charges against him. It bears repeating that Cobbs was

tried in a non-jury trial. See Commonwealth v. Moss, 852 A.2d 374, 381




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(Pa. Super. 2004) (stating that when a trial court conducts bench trial, a

presumption exists that the court disregarded any inadmissible evidence).

      However, even assuming, arguendo, that the trial court made an

improper ruling concerning one or both of the Commonwealth’s objections,

such error would be harmless and not entitle Cobbs to relief. “The harmless

error doctrine, as adopted in Pennsylvania, reflects the reality that the

accused is entitled to a fair trial, not a perfect trial.      …    Harmless error

exists[, in relevant part,] if the record demonstrates [that] … the error did

not prejudice   the   defendant   or   the   prejudice   was       de   minimis ….”

Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citations and

quotation marks omitted).     Here, Cobbs was not prejudiced by the trial

court’s sustaining the objections, as the court, sitting as the fact-finder,

considered Cobbs’s testimony and fully understood that he denied all of the

allegations against him. See Trial Court Opinion, 1/14/15, at 8 (stating that

“[t]his [c]ourt understood [Cobbs’s] denial that he hit or choked [Ms. Cobbs]

and that he flipped the couch.      This [c]ourt did not, however, give the

denials any credence.”).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/1/2015




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