J-S44032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSEPH M. VANGOETHEM

                            Appellant                  No. 208 WDA 2014


            Appeal from the Judgment of Sentence October 11, 2013
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0004160-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                             FILED AUGUST 29, 2014

         Joseph M. Vangoethem appeals from the judgment of sentence

entered October 11, 2013, in the Westmoreland County Court of Common

Pleas.    Vangoethem was sentenced to an aggregate term of four to eight



guilty of aggravated assault and escape.1          On appeal, Vangoethem

challenges the sufficiency and weight of the evidence supporting his

conviction of aggravated assault, as well as the ineffectiveness of trial

counsel. For the reasons set forth below, we affirm.



as follows:

____________________________________________


1
    18 Pa.C.S. §§ 2702(a)(1) and 5121(a), respectively.
J-S44032-14


              The instant case arises from an assault which occurred at
                     rner Tavern in Delmont, Pennsylvania.             At
       approximately 4:40 p.m., the victim, James Weinstein, was
       attacked by Mr. Vangoethem. A video was presented at trial
       which captured the assault itself. [Vangoethem] followed the
       victim around a pool table and punched the victim in the head.
       He then pushed the victim onto a table, then onto the ground.
       While on the ground, [Vangoethem] struck the victim with a
       chair. Mr. Vangoethem proceeded to kick the victim in the head
       three times. At no point was the victim ever depicted as being
       the first aggressor. At the time of the assault, the victim was 52
       years old and [Vangoethem] was 31 years old.

Trial Court Opinion, 1/3/2014, at unnumbered pp. 1-2.2       Vangoethem was

handcuffed, and placed in the back of a patrol car while the police

investigated the incident. However, sometime later he fled the scene, and

was captured about a quarter of a mile away.

       Vangoethem was subsequently charged with aggravated assault and

escape.     His case proceeded to a non-jury trial on July 16, 2013, at the

conclusion of which the trial court returned a verdict of guilty on both

charges. Vangoethem was sentenced on October 11, 2013, to a term of four


____________________________________________


2
  At trial, Vangoethem testified that the victim was upset he lost a bet to
Vangoethem, and threatened to hit Vangoethem with a pool stick. N.T.,
7/16/2013, at 177. He also stated that he was fearful the victim had a gun
because the victim told him sever
           Id. at 179. Vangoethem admitted that he punched and kicked the
victim, but stated that he did so because he was trying to leave the tavern.
Id.
                                              Id. He also acknowledged that


keep him down so that [Vangoethem] could leave without him following
                 Id. at 182.



                                           -2-
J-S44032-14




of o

and was granted an extension of time to file post-sentence motions.           On

November 11, 2013, Vangoethem filed timely post-sentence motions

challenging the weight and sufficiency of the evidence of supporting his

conviction of aggravated assault, as well as the ineffectiveness of trial

counsel. After conducting an evidentiary hearing, the trial court, on January

                                                           -trial motions.   This

timely appeal followed.3

       Vangoethem raises the following four issues on appeal:

       1.     Whether the evidence was sufficient to support his conviction of

aggravated assault?

       2.     Whether the trial court abused its discretion in denying his post-

sentence motion challenging the weight of the evidence supporting his

conviction of aggravated assault?

       3.     Whether trial counsel was ineffective for failing to call Tonya

Pefetta as an exculpatory witness at trial?

       4.     Whether trial counsel was ineffective for failing to introduce the

videot

____________________________________________


3
  The trial court did not direct Vangoethem to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).




                                           -3-
J-S44032-14



See                               -8.

      The first issue Vangoethem raises on appeal challenges the sufficiency

of the evidence supporting his conviction of aggravated assault. Specifically,

Vangoethem                                                          -defense in




the   specific   intent   to    cause   ser

                               -13.

      Our review of a challenge to the sufficiency of the evidence is well-

settled:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth's


      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the


Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010) (internal

citations omitted), appeal denied, 14 A.3d 826 (Pa. 2011).




                                         -4-
J-S44032-14



        To secure a conviction of aggravated assault, the Commonwealth must



serious bodily injury to another, or cause[ed] such injury intentionally,

knowingly     or    recklessly     under       circumstances   manifesting    extreme



as here, the victim did not suffer serious bodily injury,4

inquiry, therefore, becomes whether [the defendant] acted with specific

intent                                             Commonwealth v. Dailey, 828

A.2d 356, 359 (Pa. Super. 2003) (emphasis supplied).



the accused intended to cause serious bodily injury need not itself be life

                   Commonwealth v. Rodriquez, 673 A.2d 962, 966 (1996)

(citations omitted), appeal denied, 692 A.2d 565 (Pa. 1997).                 See also

Commonwealth v. Fortune

intent ordinarily must be proven through circumstantial evidence and




____________________________________________


4
    The Crimes Code define

        Bodily injury which creates a substantial risk of death or which
        causes serious, permanent disfigurement, or protracted loss or
        impairment of the function of any bodily member or organ.

18 Pa.C.S. § 2301. The Commonwealth concedes that the victim did not
suffer serious bodily injury as defined above. See
15.



                                           -5-
J-S44032-14



                                                                 on omitted),

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

       Here, the trial court found that the evidence was sufficient to prove

Vangoethem had the specific intent to cause serious bodily injury to the

victim. The court opined:

       [Vangoethem] was twenty years younger than the victim.[5]
       Further, he needed to be restrained by the bartender; however,
       he proceeded to kick the victim in the head as he lay on the
       ground. Then, he picked up a chair and struck the victim as he
       lay defenseless on the ground.

Trial Court Opinion, 1/3/2014, at unnumbered p. 2.



claimed he was fearful of the victim, he acknowledged that he punched the

victim as the victim was walking away from him, and then he kicked the

victim several times while the victim was lying hurt on the floor. See N.T.,

7/16/2013, at 180-181, 194. When asked by the prosecutor if he intended

to hurt the victim when he punched him twice from behind, Vangoethem

                                                 Id. at 194.



____________________________________________


5

at the time of the assault. N.T., 7/16/2013, at 181. He also testified that
the victim was about an inch taller than him, and outweighed him. Id. The
trial court was well aware of any disparity in size or build of the defendant
and victim at the time of the incident since surveillance video of the assault
was played at trial. Id. at 81-83.




                                           -6-
J-S44032-14



       The trial court, sitting as fact finder, had the opportunity to view the

surveillance video of the assault, and acted within its discretion when it



Accordingly, we agree with the conclusion of the trial court that the evidence



assault.6    See Dailey, supra, 828 A.2d at 360-361 (finding evidence

sufficient to sustain conviction for attempting to cause serious bodily injury

                                                 -




       Next, Vangoethem argues that his conviction was against the weight of

the evidence.7

established that [his] actions constituted justifiable self-defense and were

taken in response to the use of unlawful force against him by the alleged



       Appellate review of a weight of the evidence claim is well-established:

____________________________________________


6
  We note that although Vangoethem appears to argue that he acted in self-
defense, he fails to develop that claim in his brief. Accordingly, that claim is
waived for our review. See Commonwealth v. Knox, 50 A.3d 732, 748
(Pa. Super. 2012), appeal denied                                      When an
appellant fails to develop his issue in an argument and fails to cite any legal


7
 Vangoethem properly preserved his challenge to the weight of the evidence
by raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).



                                           -7-
J-S44032-14


      A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      ground that the evidence was so one-sided or so weighted in

      justice. Commonwealth v. Widmer, 560 Pa. 308, 318 20, 744
      A.2d 745, 751 52 (2000); Commonwealth v. Champney, 574
      Pa. 435, 443 44, 832 A.2d 403, 408 09 (2003). On review, an
      appellate court does not substitute its judgment for the finder of
      fact and consider the underlying question of whether the verdict
      is against the weight of the evidence, but, rather, determines
      only whether the trial court abused its discretion in making its
      determination. Widmer, 560 Pa. at 321 22, 744 A.2d at 753;
      Champney, 574 Pa. at 444, 832 A.2d at 408.

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,

134 S.Ct. 1792 (2014).

                                                              a rehash of his

sufficiency challenge.   He fails to explain how the verdict was against the

weight of the evidence, or in what way the trial court abused its discretion in

denying his weight claim.      Rather, his argument consists only of his bald

allegatio                                                            -




Opinion, 1/3/2014, at unnumbered p. 3. Vangoethem provides us with no

basis upon which to disagree. Accordingly, his weight claim fails.

      In his final two issues, Vangoethem challenges the ineffective

assistance of trial counsel.   For the reasons that follow, we dismiss these

claims without prejudice to Vangoethem to raise them in a collateral

proceeding.




                                      -8-
J-S44032-14



        Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the

Pennsylvania Supreme Court reaffirmed the general rule first set forth in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), t

ineffective assistance of counsel are to be deferred to PCRA review; trial

courts should not entertain claims of ineffectiveness upon post-verdict



Holmes, supra at 576. The Holmes Court recognized, however, that there

may be circumstances in which direct review of ineffectiveness claims should

be permitted. The Court limited those circumstances to the following: (1)

where the trial court determines that a claim of ineffe

meritorious and apparent from the record so that immediate consideration
                               8



                                                                   waiver of

his entitlement to seek PCRA review from his conviction and sentence,

including an express recognition that the waiver subjects further collateral
                                                               9



        Neither of the exceptions applies in the present case.          First,



record. In fact, the trial court, following an evidentiary hearing, determined
____________________________________________


8
    Holmes, supra, 79 A.3d at 577.
9
    Id. at 562 (emphasis supplied).




                                           -9-
J-S44032-14



that the claims were not worthy of relief. Second, the trial court made no

finding that Vangoethem demonstrated good cause for direct appeal review

of his ineffectiveness claims, and, most importantly, Vangoethem did not

expressly waive his right to a first PCRA petition. See id.

should agree to such [unitary] review only upon good cause shown and




prejudice to him to raise these ineffectiveness claims in a timely PCRA

proceeding.10

       Accordingly, because we conclude that Vangoethem is entitled to no

relief on any of the claims raised in this appeal, we affirm the judgment of

sentence.

       Judgment of sentence affirmed.




____________________________________________


10
  We recognize that Vangoethem was appointed new counsel for appeal,
and the tri

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), cert. denied, 540
U.S. 1115 (2004), we would be permitted to resolve the ineffectiveness
claims on direct appeal. However, the Holmes decision, which was filed
prior to the post-sentence motions in the present case, makes clear that an
expansive Bomar exception to PCRA review of ineffectiveness claims is no
longer viable. See Commonwealth v. Arrington, 86 A.3d 831, 856 (Pa.
2014) (noting that the Holmes                       Bomar exception to its
pre-Grant



                                          - 10 -
J-S44032-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




                          - 11 -
