J-S24042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
DAVID WILLIAM PECK,                         :
                                            :
                    Appellant               :           No. 3381 EDA 2014

      Appeal from the Judgment of Sentence entered on October 27, 2014
             in the Court of Common Pleas of Montgomery County,
                 Criminal Division, No. CP-46-CR-0005283-2013

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

MEMORANDUM BY MUSMANNO, J.:                            FILED APRIL 29, 2015

        David William Peck (“Peck”) appeals from the judgment of sentence

imposed following his conviction of one count each of recklessly endangering

another person and simple assault, and two counts of harassment.1

Additionally, Timothy Wile, Esquire (“Attorney Wile”), Peck’s counsel, has

filed a Petition to Withdraw as counsel and an accompanying brief pursuant

to Anders v. California, 386 U.S. 738 (1967).         We grant Attorney Wile’s

Petition to Withdraw and affirm Peck’s judgment of sentence.

        The trial court set forth the relevant factual and procedural history in

its Opinion, which we adopt for purposes of this appeal.       See Trial Court

Opinion, 1/27/15, at 1-6.




1
    See 18 Pa.C.S.A. §§ 2705, 2701(a)(1), 2709(a)(1), (4).
J-S24042-15


      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, he/she must do the

following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders,

i.e., the contents of an Anders brief, and required that the brief

      (1)    provide a summary of the procedural history and facts,
             with citations to the record;

      (2)    refer to anything in the record that counsel believes
             arguably supports the appeal;

      (3)    set forth counsel’s conclusion that the appeal is frivolous;
             and

      (4)    state counsel’s reasons for concluding that the appeal is
             frivolous. Counsel should articulate the relevant facts of
             record, controlling case law, and/or statutes on point that
             have led to the conclusion that the appeal is frivolous.




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J-S24042-15


Santiago, 978 A.2d at 361. “Once counsel has satisfied the [Anders]

requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.”        Edwards, 906 A.2d at 1228

(citation omitted).

      Here, Attorney Wile has complied with each of the requirements of

Anders.     Attorney Wile indicates that he conscientiously examined the

record and determined that an appeal would be frivolous. Further, Attorney

Wile’s Anders brief comports with the requirements set forth by the

Supreme Court of Pennsylvania in Santiago. Finally, the record includes a

copy of the letter that Attorney Wile sent to Peck, advising him of his right to

proceed pro se or retain alternate counsel and file additional claims, and

stating   Attorney    Wile’s   intention   to   seek   permission   to   withdraw.

Accordingly, Attorney Wile has complied with the procedural requirements

for withdrawing from representation, and we will conduct an independent

review to determine whether Peck’s appeal is wholly frivolous.

      The Anders brief filed by Attorney Wile identifies the following issues

for our review:

      1. [Whether Peck’s] convictions for simple assault, recklessly
         endangering another person, and harassment [are] supported
         by legally sufficient evidence?

      2. [Whether] the Commonwealth disprove[d] [Peck’s] self-
         defense claim by proof beyond a reasonable doubt?

Anders Brief at 4.


                                    -3-
J-S24042-15


      In his first claim, Peck asserts that his convictions of simple assault,

recklessly endangering another person, and harassment were not supported

by legally sufficient evidence. Anders Brief at 13. Peck contends that the

domestic incident giving rise to his conviction did not occur as the victim,

Melani Michelle Borrilez (“Borrilez”), portrayed it. Id. at 16.

      The trial court addressed Peck’s first claim, set forth the relevant law,

and determined that it lacks merit. See Trial Court Opinion, 1/27/15, at 7-

11. Based on our independent review of the evidence of record, we agree

with and adopt the sound reasoning of the trial court, and conclude that this

claim is frivolous. See id.

      In his second claim, Peck contends that the Commonwealth failed to

disprove his claim of self-defense by proof beyond a reasonable doubt.

Anders Brief at 24. Peck asserts that Borrilez was the initial aggressor in

the domestic incident, and that she came after him with the white-handled

butcher knife. Id. at 29.

      The trial court addressed Peck’s second claim, set forth the relevant

law, and determined that it lacks merit. See Trial Court Opinion, 1/27/15,

at 11-13. Based on our independent review of the evidence of record, we

agree with and adopt the sound reasoning of the trial court, and conclude

that this claim is frivolous. See id.




                                   -4-
J-S24042-15


     Based on our independent determination that Peck’s claims lack merit,

we conclude that his appeal is wholly frivolous, and that Wile is entitled to

withdraw as counsel.

     Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




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                                                                                                                                                     U11
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUN Y, PENNSYLVANIA                                                                                      (:i:)
                        CRIMINAL DIVISION                                                                                                            .. ,.~,
                                                                                                                                                      •1,,
                                                                                                                                                             •,.
                                                                                                                                                      f>,l1
COMMONWEALTH             OF PENNSYLVANIA                                                                                                              Gl:!l!
                                                                                                                 ,.....,                              '\
                                                                                                                                                             •,.
                                                                                                                 (::::)                               111,)
                                                                                                                                    .:t.
                                                                                           o. 5283-2013          ~                ·.: ')            jji:~I

                       vs.                                                                                      §;                .~::_,~
                                                                                                                                                 ; .. J.)!i,

                                                                                                                ~                                iJ?,lfi!
                                                                                           381 EDA 2014 _..,
                                                                                                        r,.,:,
 DAVID WILLIAM PECK
                                                                                                               (!t
                                                                                                               :?.I:           r·~;
                                                                                                                               t..::~
                                                                                                                               c:-          .'. . . _,.
                                                                                                            ~-                 :i:          -·-/

                                   OPINION OF THE COURT
                                                                                                            N
                                                                                                            0                  -,
                                                                                                                               ---1         c·:·


 Page, J.                                                                                           27, 2015
                                                                                   1
        Appellant appeals from the judgment of sentence entered in the Montgomery County
                                                                                           anuary


Court of Common pleas, following his bench trial conviction for simple aslault, recklessly

 endangering another person, and harassment on March 24, 2014. Appellant[lontends there was

 insufficient evidence for a finding of guilt. Because the evidence was legal] sufficient to prove

 Appellant committed the charges brought against him and todisprove Appe lant's claim of self-

 defense, this Court's conviction of Appellant should be affirmed.



                             FACTS AND PROCEDURAL HISTORY

        On March 24, 2014, having waived his right to a jury trial, Appellat David William

 Peck was tried by the undersigned on charges of terroristic threats (18 Pa.CJS.A. § 2706),

recklessly endangering another person ("REAP") (18 Pa.C.S.A. § 2705), siiple assault (18
                                                                                   I                   .
 Pa.C.S.A. § 270l(a)(l)), and harassment (18 Pa.C.S.A. §§ 2709(a)(1) and Ct)). The parties put
                                                                                   I
 forth the following evidence:                                                     I
        Melani Michelle Borrilez, Appellant's on-again-off-again girlfriend,! testified that she
                                                                                       I
 became pregnant with Appellant's child in May of 2013, a fact of which Appellant was aware.
                                                                                       !
 Trial Tr. 12:24-13:6. On June 3, 2013, Appellant asked Ms. Borrilez to clet his apartment

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while he was at work. While she was there, the couple started arguing via trJ11 message about her

car being parked in his driveway and about Appellant's wife. Appellant repeatedly asked that
                                                                                                    !                                       l
Ms. Borrilez leave his apartment before he returned home. Ms. Borrilez reffused his request. She
                                                                                                        I                                   i
                                                                                                        I :
stated to the court that it was normal during the course of an argument to be told to leave but                                                                                                    t.!111
                                                                                                        iI ''
return shortly thereafter. Trial Tr. 42:23-25. Ms. Borrilez began to pack her things. Appellant
                                                                                                            I                                   !
returned home at approximately 4:00pm, and the argument continued. Ms. ~6rrilez testified that
                                                                                                            I                                   .
                                                                                                            I :
during the argument she "went into the bedroom and started finishing packing and I saw two
                                                                                                                I :
porn DVDs that I bought him so I came out and was in the dining room and s~arted cutting those
                                                                                                                I                                   i
up." Trial Tr. 18:9-12.
                                                                                                                I :
                                                                                                                I

              Appellant responded to these actions by putting Ms. Borrilez in a choke hold. She could
                                                                                                                I                                       :
                                                                                                                i                                   !




not breathe and she could not talk. He then flung her to the floor, where sh9 hit her forehead, and
                                                                                                                    I
"everything went black." Trial Tr. 19: 17. Ms. Borrilez testified that "I was ~cared that if he

didn't let me go he was going to kill me." Trial Tr. 19 :22-23.                                                     I
              Ms. Borrilez then retreated to the bedroom to continue packing. Shel testified that
                                                                                                                        I                                   i
Appellant pursued her and, facing her, wrapped his hands around her neck. [Ifial Tr. 21 :20-25.
                                                                                                                        I ;
When he let go, she returned to the dining room, where, she claimed, he punched her in the
                                                                                                                        I :
stomach, causing her to run to the bathroom to vomit. Trial Tr. 23 :5-23. AJpJllant then seized
                                                                                                                        I .
some of Ms. Borrilez's packed items, including her cellular telephone, whi9h he snapped into

                                                                               I • anyways." Trial
two pieces, claiming, as Ms. Borrilez put it, "I was on his plan so it's his phpne
                                                                                                                            l                                   .
          ,                                                                                                                 I
                                                                                                                            I                                   '
Tr. 25:4-5. Returning into the house, Appellant retrieved a white-handled butcher's knife, held it                          I                                   ,
                                                                                                                            I


                                             1
close to Ms. Borrilez's stomach, and said, per Ms. Borrilez, "that he was g~ing to kill my
                                                                                                                                I
                                                                                                                                I :
fucking baby." Trial Tr. 25:7-13. Ms. Borrilez admits to have been "instigating him [sic]" at that



I
    Ms. Borrilez testified that Appellant was pointing it at her stomach from a distance of 3-4 lfeet, Trial Tr.25: 16-20.
                                                                                                                                I   I                               '·



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point, in an attempt to "act strong." Trial Tr. 27:9-10. Appellant then discarded the knife and left
                                                                                                                                        t- ~.
the premises.
                                                                            '                 'I



      Ms. Borrilez stated that she did not telephone the police because shelj'was scared. I didn't
                                                             :              :!
know what he was going to do." Trial Tr. 29:2-3. She went to a hospital to attend to her

injuries,2 which included a bleeding "brush bum" on her forehead and bruise~
                                                                           . i
                                                                               on her legs and

neck. Trial Tr. 29: 15-17. Ms. Borrilez subsequently filed for a Protection frJm Abuse Order

                                  3
("PF A") against Appellant.

         Police were called to the hospital. Officer Thomas A. Godin, Sr., tbe bommonwealth's

second witness, testified that he responded to the hospital and interviewed M~. Borrilez, who was

"extremely emotional," "crying," and "kind of shaking." Trial Tr. 64:8-9. He stated that her

visible wound included a laceration to the forehead, a mark and redness on Htr knee and hip, and

red petechial hemorrhaging" around her neck. Trial Tr. 64: 14-;-18. The officer testified that while

photos had been taken of Ms. Borillez's injuries, they were, for an undisclosed reason, not

available for trial. Trial Tr. 63:23-64:17.
                                                                                ;                  : i

         From the hospital, Officer Godin proceeded to Appellant's apartment.and took Appellant

into custody. With the consent of Appellant's roommate, Officer Godin searched the apartment
                                             5
and retrieved a white-handled knife. The Officer also observed broken "CDt'6 in and around

the trashcan, and half of a broken cellular telephone.

         At the stationhouse, Appellant was informed of his Miranda rights and signed a form

waiving them. Commonwealth's Ex. 4. Officer Godin testified that before A~pellant was

2
  Ms. Borrilez testified that she drove to a hospital that was closer to where she was rcsiding.lrather than the nearest
hospital to the incident. Trial Tr. 28: 12-20.                                                 . .
3
  On cross-examination, it was made apparent that Ms. Borrilez and Appellant have a colorful history which
includes multiple PF A hearings and romantic reconnections subsequent to the instant event.'
4
                                                                                                         i
  The witness claimed he observed that there were broken capillaries underneath the skin. Trial Tr. 68: 12-13.
5
  The Commonwealth did not produce the knife at trial, supposedly because it was never seized. Closing Arg. Tr.
 14: 19-15: I I.                                                                                  .
6
  The Court acknowledges that CD's are fairly indistinguishable from DVD's in their external appearance.


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transported to a holding facility, Appellant made an unsolicit~d statement iri ~is presence that "he
                                                               1                              j 1


and Ms. Borrilez were in a toxic relationship and that he usually chokes herl'!' Trial Tr. 76:20-22.
                                                               i                              '
       The medical records, entered into evidence by the Cotnmonwealth, ~ere contradictory

regarding the injuries Ms. Borrilez's sustained to her neck an~ abdomen.                    Ser[ Commonwealth's
Ex. I . The "Emergency Provider Record" focused on the abrtlsion on her head and her pregnant
                                                                   j
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status - there are checkmarks indicating only that her neck was "non-tender,'!' "painless ROM,"

and "trachea midline," and that her abdomen was "non-tendet," "no organornegaly," and "no

distention." Commonwealth's     Ex. I at 3. On the other hand, the "Triage Assessment 2," found                                                         )
                                                                                                j              I
on pages two and three of the "ED Summary," state that Ms. Borrilez had braises on her neck
                                                                       '                          :            ;

                                                                       i                          1 I
and was punched in the abdomen, as well as having an abrasion to her forehead and left knee.

Commonwealth's     Ex. 1 at 8-9.
                                                                       !                              l l
       The Commonwealth also introduced into evidence a pprtion of the Incident of Abuse
                                                                       1                              1 \

form which Ms. Borrilez submitted when applying for a PFA}, Commonweal.~h's Ex. 2, and the
                                                                           :                          !            !
statement she gave to the police on the day of the incident, Commonwealth'slEx. 3. Appellant
                                                                           '                          i !

pleaded guilty to robbery in 2002, and a certified copy of the disposition order was entered as the
                                                                               '                      i

Commonwealth's final exhibit. Commonwealth's          Ex. 5.

       Appellant's testimony regarding the events was, not surprisingly, different, Appellant
                                                                                                          i'



testified that when he returned home, he sat on his couch and continued to ask Ms. Borrilez to

leave, and that she slapped him across the face two or three tiriies. Trial Tr. 97:13-1, 98:3-5.
                                                                                   :                      '

Appellant laughed, enraging Ms. Borrilez, who began to cut tJe DVD's. Applllant then grabbed

a DVD himself, ripped it, and threw it in the trash. Ms. Borrilez hit Appellant' on the chest and
                                                                                   i                       : 1


continued packing. Trial Tr. 99:3-4. Appellant took her bag obtside and snapped her cellular
                                                                                   j                       : '




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                                                                          1                                        '111
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telephone in half. Appellant testified that Ms. Borrilez had smashed the screen the week prior,
                                                                          1                                            Ii




and that the telephone was on his payment plan. Trial Tr. 99:6-11.                                                     11

                                                                              1                                        11
         Ms. Borrilez returned inside, at which point Appellant began yellin~ ~t her to leave.
                                                                              i                                         II
Appellant testified that Ms. Borrilez then "grabbed the knife7! and came at                                       n1.t"8                                                   Trial Tr. 99: 17-
                                                                                  i                                     Ii
18. Appellant said that he let her approach and cut him, because "I'm not scared of her." Trial Tr.
                                                                                  !                                         JI
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114: 19-20; see also Trial Tr. 109: 18-23 (Appellant agreeing ithat he was no~I afraid of Ms.
                                                                                      !                                     i

Borrilez because he "thought she was being ridiculous."). Apbellant testifie~I that he received a
                                                                                      I                                     iI
superficial cut on his arm, which was photographed after the event." Trial TtJ 99:20-22.
                                                                                          i                                 1                !
                                                                                          !                                  i
         Appellant then grabbed her by the wrist, causing the knife to drop, ail~ "flipped her
                                                                                          i                                  II
                                                                                          i                                  'i
around and put her in like the restraint position'" and tried to escort her out
                                                                                              (
                                                                                                                       9f the house." Trial
                                                                                                                                j                 i

Tr. 99:22-24. Appellant testified that he was able to restrain Ber "because I'~ a lot bigger than
                                                                                              i
                                                                                              i
                                                                                                                                 I
                                                                                                                                 j i
                                                                                                                                                  I
her." Trial Tr. 108:7-8. Ms. Borrilez continued "swinging" atl Appellant until she "wiggled out."
                                                              I
                                                                             j !
Trial Tr. 99:24-100:3. Appellant picked up the knife. Ms. Borrilez said "Do~'t kill my baby.
                                                                                                  j                                 l                 1


Don't kill my baby," to which Appellant responded "Are you !kidding me? I ~on't want to kill
                                                                                                  ;                                  'i


you. I don't want to kill the baby." Trial Tr. 100:4-8. Appellaht threw the kJ~fe on the couch.
                                                               I               !I
Appellant testified that he was laughing throughout this episode. Trial Tr. l 09: 15-17. Appellant    (                                 ';                i

                                                               !               l!
also denied having punched Ms. Borrilez in the stomach TriallTr. 101:21-22\.IThey both walked
                                                                                                      I                                                   I
                                                                                                      i                                  ;I
out of the house, but Ms. Borrilez returned inside. Eventually.lwith Appellant! watching from his     I                                  ;                 i




wife's nearby driveway, Ms. Borrilez left the premises. Appellant did not enUr any exhibits into
                                                                                                          i                                  i
                                                                                                                                             ! )
evidence.                                                                                                                                    ll               Ii

                                                                                                              !
                                                                                                              i
7
8
                                                                          s+
   Appellant testified that it was a twelve-inch bread knife. Trial Tr. I 07: 1 16, I 09:2.    ! I
   Appellant testified that Ms. Borrilez retrieved the knife and walked over tp Appellant befot~ cutting him, covering
a distance of seventeen feet. Trial Tr. 110:8-11.                               i               iI
9
   The alleged photographs were presumably part of the same set of photographs that were no'tiproduced by the
Commonwealth for trial.                                                                            l          i                                   :
10
    Appellant testified that this included an arm around her neck. Trial Tr. I    17-20.        l     qs:                                                          i
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                                                           I                          'I                                                                              Ui11
       At the conclusion of the bench trial, Appellant was ~ound guilty byj~he undersigned of the
                                                           ,                          i         I
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                                                           l                          1         l


following offenses: REAP (18 Pa.C.S.A. § 2705), Simple Assault (18 Pa.o.is.A. § 2701(a)(l)),
                                                               i                      \ l
                                                               l                      1 \
                                                               I                      l l
and two counts of Harassment (18 Pa.C.S.A. §§ 2709(a)(l),\4)). He was foHnd not guilty of
                                                                   '                      1 I

Terroristic Threats (18 Pa.C.S.A. § 2706). Accordingly, on October 27, 20)~, Appellant was
                                                                   !                      I\
                                                                   :                      ! !
                                                                   \                      ) t

sentenced to nine to twenty-three months imprisonment, along with two ye~rs of consecutive
                                                                                          \l
probation and one year of concurrent probation. Appellant filed no post-sentence motions, but
                                                                       .                   \ f
                                                                                           1 !
                                                                                           I:
                                                                                           i
filed notice of the instant appeal on November 26, 2014.
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                                                                                               ,
                                                                                               ] 1.


                                            ISSUES                                              ! '.
                                                                                                Ij' l
                                                                                                1 \

       In his Concise Statement of Errors Complained of on Appeal, ~ppellant asserts the
                                                                                                     j.



following:                                                                                           Ii
                                                                                                     : i
                                                                                                     j f
                                                                                                      '1!


       Appellant Peck's convictions for the offences of Simple Assault, Recklessly
       Endangering Another Person (REAP), and (2) counts of Harassment are not
       supported by legally sufficient evidence in that:       :               :i
               a.     The altercation that occurred between Appellant' i and Melani
                      Borrilez on 3 June 2013 arose out iof a domestic! dispute and
                      involved mutual combat between Appellant and Ms. ~orrilez;
               b.     Appellant Peck asserts that the evidence established that Ms.
                      Borrilez was the initial aggressor in that altercation, nqt
                      Appellant;                                 ;             :\
               c.     Appellant Peck properly raised the !issue of self-defence as a
                     justification for his actions with respect to Mr. Borrilez;
               d.     The Commonwealth failed to disprove by evidence beyond a
                      reasonable doubt Appellant Peck's clai?1 of self-deferi9e;
               e.     The Commonwealth failed to produce sufficient l evidence of
                      App~llant' s mens rea to satisfy the intent element ofi ~he offences
                      of Simple Assault, REAP, and Harassment.                  '1
                                                                           .                                   'i
                                                                                                               , I
                                                                                                               1,
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This Court has condensed the above issues to (1) Was the finding that App~l~anthad the requisite
                                                                            ;                                   !                 i

mental intent for each offense supported by legally sufficient evidence? an~ (2} Was the finding
                                                                                .                                ! :                                       .
                                                                                j                                !                !
that Appellant did not act in self-defense supported by legally sufficient evi~~nce?11
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                                                                                                                     11
                                                                                                                     i
                                            STANDARD OF REVIEW                                                       ii
                                                                                    !.                               It
                                                                                    \                                : !
         Evidentiary sufficiency presents a question of law. Therefore, the ap~ellate court's
                                                                                    !                                 j \
standard ofreview is de novo, and its scope ofreview is plenary. Commonw~alth v. Meals, 912
                                                             !          ii
A.2d 213, 218 (Pa. 2006). The appellate court must determinJ whether "the ~vidence admitted at
                                                                                        i                                 I
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trial, and all reasonable inferences drawn from that evidence, when viewed ip the light most
                                                                                         l                                j;
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favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to                              'l


                                                                                            i                                 ;            i

conclude that the Commonwealth established all of the elements of the offense beyond a

reasonable doubt." Commonwealth v. Fears, 836 A.2d 52, 58+59 (Pa. 2003)]. \The
                                                                                             i                                !i
Commonwealth may prove all elements beyond a reasonable doubt through fhe use of wholly
                                                                                                •                                 i
                                                                                                 I                                !            ;

                                                                                                !                                 !            t
circumstantial evidence. Id. The evidence is sufficient "unlessl the proof relied upon for a
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conviction is so weak and inconclusive that as a matter of lawlno probability'of fact can be
                                                                                                 .                                    l [
                                                                                                                                      1'
drawn from the combined circumstances." Commonwealth v. ~awles, 462 AJd 619, 622 (Pa.
                                                                                                     I                                :            .

                                                                                                     i


1983). An arrest of judgment based on insufficiency of the evidence will inv91<e double jeopardy,
                                                                                                     !
                                                                                                     i                                ;;
shield an appellant from retrial, and effectively result in an acquittal.i ' Tibbs iv,. Florida, 457 U.S.

31, 41 (1982).




11
   Appellant properly challenges the legal sufficiency of the evidence for th!e first time on ap~~al, pursuant to Rule
606 of the Pennsylvania Rules of Criminal Procedure.                          !                  .
12
   Had Appellant challenged the weight, rather than the sufficiency, of the evidence, the standard on review would
be abuse of discretion, and the remedy would be a new trial. Tibbs v. Florida, 457 U.S. 31, 4~ ( 1982). Appellant,
however, has waived this challenge by failing to raise it before the trial court. Pa. R. Crim. Pl ;607.


                                                            7
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                                            ANALYSIS                                     Itl l
                                                                                         !             i


I.     There was sufficient evidence to find beyond a reasonable doubtl~hatAppellant                                           had
       the requisite mental intent to commit Simple Assault, REAP, andll'Iarassment.
                                                                 l                       !:
                                                                 l                       l             t
       A. Simple Assault                                                                 t :



                                                                                         Il
       A person can be properly found guilty of simple assault when the Cornmonwealth proves
                                                                 i                           I,: .

beyond a reasonable doubt that he "attempt[ed] to cause or intentionally, kn~~ingly or recklessly
                                                                                             j


cause[d] bodily injury to another" 18 Pa. Cons. Stat. Ann.§ 2701(a)(l). Ap~yllant has
                                                                     1                       1:
                                                                     I                       I


challenged only the sufficiency of evidence surrounding the element of mens] rea. Therefore, this
                                                                     !                       i\
Court focuses its analyses on the sufficiency of the evidence that Appellant acted intentionally,
                                                                     l                       j i
                                                                         .                   1 i


knowingly, or recklessly.
                                                                         !                       j !

       The Pennsylvania Crimes Code defines each of the poksible mental states for simple
                                                                                                 l!
assault in section 302. It states that a person acts "intentionally" when "it is ~is conscious object
                                                                             .                   i'

to engage in conduct of that nature or to cause such a result." 18 Pa.C.S.A. §1~02(b)(l)(i).
                                                                                                  !
                                                                                                  ''

Section 103 further states that the words and phrases "with intent," "designc~," and "with

design" have the same meaning. 18 Pa.C.S.A. § 103. A person acts "knowingly" when "he is
                                                                                                  I
                                                                                 !                '




aware that it is practically certain that his conduct will cause shch a result." , Pa.C.S.A. §                 S
302(b)(2)(ii). Finally, a person acts "recklessly" when

         he consciously disregards a substantial and unjustifiable risk that the tjlaterial
       · element exists or will result from his conduct. The riskl must be of suth a nature
         and degree that, considering the nature and intent of the actor's conduct and the
         circumstances known to him, its disregard involves a gross deviation !~rom the
         standard of conduct that a reasonable person would observe in the actcr's
         situation.                                               iI

18 Pa.C.S.A. § 302(b)(3).
                                                                                     i                 ; i




       Viewing the evidence in the light most favorable to thJ j CommonweaIJh,
                                                                           ) ;
                                                                               a reasonable
                                                                                     i                     .
inference can be drawn that the testimony offered by Ms. Borrilez
                                                             i
                                                                  was credible
                                                                            : t
                                                                                and that the facts




                                                   8
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of the case occurred as she presented them. While photographs of the injuri~s were regrettably
                                                                          i                                       ! \



not before the court, and the medical records inconclusive ori the extent of ~~r injuries, Officer

Godin corroborated that he observed that Ms. Borrilez had suffered a head Uound and severe
                                                                              j                                   i
neck abrasions. Neither of these injuries is explicable given Appellant's testimony, which did not
                                                                              :                                   i I
                                                                              :                                   1 \


include how Ms. Borrilez had hit her head, and which described his choking I of Ms. Borrilez as a
                                                                                  !                               !t
"restraining position" performed from behind and executed with his arm rather than his hands.
                                                                                                                   ! l

Appellant could also lose credibility with the fact-finder given' his criminal h~story,
                                                                               , I
                                                                                        his story that
                                                                                      :                               ! i
                                                                                                                      j           i
he allowed Ms. Borrilez to cut him, and, of course, his statement in the presence of Officer
                                                              :               li
                                                                                                                      !i
Godin that he "usually" chokes Ms. Borrilez.13                                                                            i; i
                                                                                                                          ii
         Presuming the situation unfolded as described in Ms. Borrilez's testimony, Appellant at
                                                                                          \                               !l
the very least acted recklessly in his encounter with Ms. Borrilez. Appellant\placed Ms. Borrilez
                                                                                          '                               .i
                                                                                                                          i
in a choke-hold from behind, causing her to possibly lose consciousness and                                                             per head to strike
                                                                                                                           i
                                                                                              ·                            Ii
the ground and bleed. He choked her from the front, to the extent that she had visible bruises
                                                                                              1                            l• \I
                                                                                              i                            i I
hours after the encounter. He punched her in the stomach with enough force i~o make her vomit.
                                                                                                  i                           1
Appellant's actions constituted a gross deviation from the standard of conduct that a reasonable
                                                                                                  '1                          j !
                                                                                                      :                       ! !
person would observe in Appellant's situation (i.e., when having an argument with one's
                                                                                                      j                        !!
                                                                                                                               'I

girlfriend where one does not feel physically threatened).                                                                     !!
                                                                                                                               iI
         Therefore, when viewing the evidence admitted at tria~ and all the redfonable inferences
                                                                                                          I                       ! I
                                                                                                          l                       1 \
drawn from therein in the light most favorable the Commonwealth, the evidence was sufficient
                                                                                                                                    i
                                                                                                                                    ! I
13
                                                                                                              :                     j         l
   In should be noted that in a case such as this, where there is conflicting testimony betweep! the only two eye-
witnesses, there is often no "hard evidence" to accompany the testimony. The conclusions df~Wn by the fact-finder
may hinge on the circumstantial evidence, such as a third party's corroboration of the victim\'~ wounds. See
Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012) ("[T]he fact th* the evidence establishing a defendant's
participation in a crime is circumstantial does not preclude a conviction where the evidence, !coupled with the
reasonable inferences drawn therefrom, overcomes the presumption of innocence. ") ( quoting !commonwealth v.
Stays, 40 A.3d I 60, 167 (Pa. Super. 2012)). Conclusions drawn by the fact-finder as to the cfedibility of the
witnesses are a measure of the weight of the evidence and are therefore not! to be questioned [quring a challenge to
the sufficiency of the evidence. Id.                                           !               \i
                                                                                                 I
                                                                                                                                        11
                                                                                                                                        ! :
                                                                                                                                        !i
                                                                                                                                        j i
                                                                                                                                        I:
                                                          9                                                                             I'
                                                                                                                                        I!
                                                                                                                                         I:
                                                                                                                                         !        f
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                                                                               \                       Circulated 04/02/2015 02:45 PM




to enable a fact-finder to conclude beyond a reasonable doubt! that Appellant [had the requisite
                                                                  i;               1 I
                                                                   i               r :                                           .,. ..
mental intent to commit simple assault. See, e.g., Commonwealth v. Wright, 1832 A.2d 1104,                                         ",



                                                                  !                '




1110 (Pa. Super. 2003) (finding that the evidence "plainly satisfies the stanclJrd for sufficiency"
                                                                   L               )           i


                                                                  1
                                                                  !
                                                                                   ![
                                                                                   :           f


for a conviction of aggravated assault and recklessly endangering another person where the
                                                                   !               : :

                                                                   i
appellant's testimony about the shooting contradicted that of the victim's antj two eye-

witnesses).

         B.REAP
                                                          !            Ii
         A person can be found guilty of REAP when the Commonwealth proves beyond a
                                                                   l                   ll
reasonable doubt that he "recklessly engage[d] in conduct which place[d] orlmay [have] place[d]

another person in danger of death or serious bodily injury." 1 ~ Pa. C.S.A. § f'.705. As stated

above, viewing the evidence in the light most favorable to thej Commonweal~h, it is reasonable to

assume the scene occurred just as Ms. Borrilez testified. The (act-finder could easily infer that

when Appellant punched Ms. Borrilez in her abdomen, knowing that she wa~ pregnant, he
                                                                       :               '

consciously disregarded a substantial and unjustifiable risk th~t he may have placed her in danger

of death or serious bodily injury. Similarly, when Appellant choked Ms. Bo~ilez to the point of

losing consciousness, he risked causing her serious brain injury which can result from a lack of
                                                                                       t:



oxygen. Therefore, the evidence was sufficient to enable a fac,~-finder to con~lude beyond a
                                                                       .               l l




reasonable doubt that Appellant had the requisite mental intent to commit ~AP.

         C. Harassment
                                                                       !   ;
                                                                       j               li
         A person can be found guilty of harassment, as charged, when the Commonwealth proves
                                                                           .               '


beyond a reasonable doubt that the person, "with intent to harass, annoy or alarm another, the
                                                                                           l       i



person ...    strikes, shoves, kicks or otherwise subjects the other person to physical contact, or

attempts or threatens to do the same; ... [or] communicates to or about suchl other person any

                                                                                           !l


                                                   10
                                                                                                                      Circulated 04/02/2015 02:45 PM



                                                                               i                        i !

lewd, lascivious, threatening or obscene words, language, drawings or caricatures." 18 Pa.C.S.A.
                                                                               ;                        i[
§§ 2709(a)(l), (4). An intent to harass may be inferred from                 tie
                                                                               '
                                                                                           totality of t~J circumstances.
                                                                                                        i.




Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013), r~argument
                                                          '
                                                                    de~ied
                                                                       ! '
                                                                           (Sept. 27, 2013).
                                                                                                                                                1 .. ,,,,
         Taking Ms. Borrilez at her word, when Appellant wrabped his hands!around her throat or                                                 u~
                                                                                   :                    !     1



brandished a knife and threatened their unborn child, a fact-finder could reasonably conclude that
                                                                                   '                    '


it was his design to harass, annoy, or alarm her. The totality ofthe
                                                                .
                                                                     circumsta~ces,
                                                                              ; '
                                                                                    including the

escalating violence in the scenario and Appellant's statement before Officer ~odin, indicate that

it was Appellant's conscious objective to communicate threatening words to!~s. Borrilez. The
                                                                                   :                     l        !




evidence was sufficient to find beyond a reasonable doubt that Appellant hacl1the requisite mental

intent to commit harassment.



II.      There was legally sufficient evidence to find beyond a reasonable! doubt that
         Appellant did not act in self-defense.

          Section 505 of the Pennsylvania Crimes Code outlines! when it is justifiable to use force

against another person in the interest of self-protection.14 See 18 Pa. C.S.A.
                                                                                       ;
                                                                                                       J 1505. A defendant
                                                                                                             r :




 14
    § 505. Use of force in self-protection                                       :                 i;
(a) Use of force justifiable for protection of the person.-The use of force upon or toward another person is
justifiable when the actor believes that such force is immediately necessary for the purpose 9f protecting
himself against the use of unlawful force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force. . . .                   ;                ::
           (2) The use of deadly force is not justifiable under this section unless the actor believes that such
           force is necessary to protect himself against death, serious bodily !injury, kidnapping or sexual
           intercourse compelled by force or threat; nor is it justifiable if:    i                !i
                     (i) the actor, with the intent of causing death or serious bodily injury, pro~dked the use of
                     force against himself in the same encounter; or                .              .
                     (ii) the actor knows that he can avoid the necessity of using such force witK complete
                     safety by retreating, except the actor is not obliged to retreat from his dwelling or place of
                     work, unless he was the initial aggressor or is assailed inihis place of work by another
                     person whose place of work the actor knows it to be.          i                ··
           (2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed to have: a reasonable
           belief that deadly force is immediately necessary to protect himself against death, serious bodily
           injury, kidnapping or sexual intercourse compelled by force or threat if both of the following
           conditions exist:                                                          ·             ··



                                                             11
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                                                                                                      I
                                                                                                      i!
                                                                                                       i                j
                                                                            (                          t :                                                     t.:f11
has no burden to prove he acted in self-defense. Commonwealth v. Smith, 9?: iA.3d 782, 786 (Pa.
                                                                            .                             ! .
                                                                             :                            It
Super. 2014). A defendant's only duty is to present some eviqence that wou~? support a finding
                                                                             1                            1'
                                                                             '                             i

of self-defense by the fact-finder. Id. at 787.                                                            I
         The Commonwealth carries the burden to prove beyoJd a reasonablJ ldoubt that the
                                                                                '                          l:
                                                                                                           l                !

defendant was not acting in self-defense. Id. at 787. The Commonwealth ca+ido so by
                                                                                 I                             !:
establishing either that: "1) the accused did not reasonably believe that he was in danger of death
                                                                                 i                             I:
                                                                                                               ! :


or serious bodily injury; or 2) the accused provoked or continhed the use of force; or 3) the
                                                                                 :                             1,

accused had a duty to retreat and the retreat was possible witH complete safe~y." Id. The
                                                                                                               i

defendant must have had both a subjective belief that he was in imminent d~nger, and an
                                                                                     '                          I
                                                                              l:
objectively reasonable belief that the use of force was necessary to protect against death or
                                                                                     ,                          I
                                                                                                                I
                                                                                     !                          ! i
serious bodily injuries. Id. The reasonableness of a defendant'si belief can be! determined by                  1:




considering such factors as "whether complainant was armed,! any actual phJsical contact, size
                                                                                     1                              i           1

                                                                                         I                          !

and strength disparities between the parties, prior dealings between the parties, threatening or
                                                                                         l                          !i
menacing actions on the part of complainant, and general circhmstances surrounding the
                                                                                         !                          i'
                                                                            l '.         1
incident." Id. at 788. The defendant also must not have "used more force thap reasonably
                                                                                                                        ! :




                   (i) The person against whom the force is used is in the process ofunlawfu)\y and
                   forcefully entering, or has unlawfully and forcefully entered and is present within, a
                   dwelling, residence or occupied vehicle; . . .              i                  It
                   (ii) The actor knows or has reason to believe that the unl~wful and forceful: entry or act is
                   occurring or has occurred.
         (2.2) The presumption set forth in paragraph (2.1) does not apply )if:
                   (i) the person against whom the force is used has the rigtjt to be in or is a l~wful resident
                   of the dwelling, residence or vehicle, such as an owner or lessee; . . .       ! .
                                                                                             a
         (2.5) Unless one of the exceptions under paragraph (2.2) applies, person who unlawfully and by
         force enters or attempts to enter an actor's dwelling, residence or occupied vehicle ~r removes or
         attempts to remove another against that other's will from the actor's dwelling, residence or
         occupied vehicle is presumed to be doing so with the intent to commit:                                          i:
                   (i) an act resulting in death or serious bodily injury; or i                    i'
                   (ii) kidnapping or sexual intercourse by force or threat. . \ .                 :.
         (3) Except as otherwise required by this subsection, a person employing protective force may
         estimate the necessity thereof under the circumstances as he believes them to be when the force is
         used, without retreating, surrendering possession, doing any other' act which he hasl~o legal duty
         to do or abstaining from any lawful action.                             1                 ·

18 Pa. C.S.A. § 505.
                                                                                                   !i
                                                                                                                            !!
                                                           12
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                                                                                               1
                                                                                               Ii
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                                                                             i                 11
                                                                             '                 'I
necessary to protect against death or serious bodily injury." Id;. Finally, the dAfendant "must be

free from fault in provoking or escalating the altercation that l~d to the offenrr·" Id.

           Viewing the evidence in the light most favorable to the Commonwealth, the fact-finder
                                                                             ,                 It



can take Ms. Borrilez at her word. See id. ("The complainant dan serve as a titness to the                                             urn
                                                              ,             I·
                                                                             l                 Ii
incident to refute a self-defense claim.") If Appellant was the sole aggressorj there was no need
                                                                 .           !
                                                                             I
                                                                                               Ii
                                                                                               1
for him to defend himself, and Appellant's self-defense argument fails before] it begins.

           Even considering Appellant's testimony to be true-wlich is not req~ired during a

challenge to the sufficiency of the evidence or to rebut a clainJ of self-defenJJ15-Appellant
                                                                             .                 i         !
                                                                             1                 i !
testified that he was not scared of Ms. Borrilez, that he was much larger tha~ herself, and that he
                                                                             I                 I'
was laughing throughout the incident. Appellant cannot now J1aim that he hc1:b a subjective belief
                                                                                 .             Il
that he needed to use force to protect himself from death or serious bodily injuries. Therefore,

there was sufficient evidence to find beyond a reasonable doutt both that Ap~ellant did not act

reasonably in this situation and that Appellant escalated the argument into a physical altercation.
                                                                                 !              I!
                                                                                                1,

                                                                                                11
                                                                                                I!
                                                                                                11
                                                                                                   I:
                                                                                                   Ii
                                                                                                   Ii

                                                                                                   I! !
                                                                                                   !
                                                                                                   i!
                                                                                                   iI
                                                                                                   i
                                                                                                   11


                                                                           .                  It
15
     See id. ("Although the Commonwealth is required to disprove a claim of self-defense arisi9g from any source
beyond a reasonable doubt, a [fact-finder] is not required to believe the testimony of the defbhdant who raises the
claim.") (quoting Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008)); see, e.g.1 Fommonwealth v.
Brown, 648 A.2d 1177, 1182 (Pa. 1994) ("Appellant's attack on the sufficiency of the evidence is, in essence, a
spurious claim that if his version of events were given credence, he killed i;n self-defense. In! view of the conflicting
physical evidence and expert testimony, and in view of the inconsistency of appellant's accounts, it is understandable
that the jurors did not credit appellant's testimony. There was more than sufficient evidence   i6  prove every element
of the offense and to disprove the self-defense claim beyond a reasonable doubt.")               II
                                                                                                    I:
                                                                                                    i
                                                                                                    I!




                                                           13
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                                                                                                                  ,1:UJr
                                                                                                                      nIii
                                                                                                                      : :~
                                                                                                                     1;,1rn
                                         CONCLUSION                                                                  ,rn,;
                                                                                                                     iwr~,
                                                                                                                     '1,,
      For all of the aforementioned reasons, this Court's order should be af!firmed.                                        ,,,.
                                                                           ' '   -r~•··,..,.-i:-..__
                                                                                                   ·•.
                                                                                                                     t, .l!
                                                                                                                        1




                                              )(BY THE COURT:                                          "",,.,_,
                                                                                                          ~'
                                                                                                                     ~l!ifli
                                                                                                                     ., ,
                                                                                                                     1\11
                                                                                                                            •,.

                                                                                                                     i:i!~
                                                                                                                     i•"P•
                                                                                                                     urn



                                              . GARRETT D. PAGE,                      J.
                                                -;.;~.,




Copies of the above Opinion
Mailed on / •   l7•      ~013
By First-Class Mail:
David Peck, Appellant
By Inter-Office Mail:
Anne Schools, Court Administration
Montgomery County District
 Attorney- Appellate Division
Timot Peter Wile, Assistant Public Defender




                                                14
