J-S03015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    LUIS F. ORTIZ,

                             Appellant                 No. 1140 EDA 2017


          Appeal from the Judgment of Sentence Entered March 1, 2017
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003465-2016


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 13, 2018

        Appellant, Luis F. Ortiz, appeals from the judgment of sentence imposed

after a jury convicted him of simple assault. We affirm.

        The trial court thoroughly summarized the procedural history and factual

background of this case as follows:
        On February 28, 2017, a Jury Trial was held in the above-
        captioned matter on one charge of Simple Assault [(18 Pa.C.S. §
        2701(a)(1))], graded as a Misdemeanor of the 2nd Degree. On
        March 1, 2017, the Jury rendered a Guilty verdict and … Appellant
        was sentenced to serve not less than one year nor more than two
        years at a State Correctional Institution. Following the Trial, the
        [c]ourt found… Appellant guilty of one count of Harassment [(18
        Pa.C.S. § 2709(a)(1))], graded as a Summary and imposed a
        consecutive 90 day period of probation.

        On March 9, 2017, … Appellant filed Post-Sentence Motions,
        including a Motion for a New Trial (Verdict is Against the Weight
        of the Evidence)…. On March 16, 2017, the [c]ourt denied the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     Post-Sentence Motion. On April 4, 2017, [Appellant] filed a Notice
     of Appeal. On May 1, 2017, … Appellant filed a Concise Statement
     of Matters Complained of on Appeal. In the Concise Statement,
     … Appellant argued again that [the] verdict rendered was against
     the weight of the evidence presented at trial, specifically
     highlighting “the serious inconsistencies in [Ms. Yocum’s]
     testimony, the lack of credible proof of Appellant[’s] assaulting
     [Ms. Yocum], and … Appellant’s actions as a result of provocation.”
                                     …

                         SUMMARY OF THE FACTS

     On May 9, 2016, at approximately 3:30 p.m., Heather Yocum
     returned to her home at 4173 Roosevelt Street, Whitehall
     Township, Lehigh County, Pennsylvania[,] after work. At the time,
     Ms. Yocum lived at the residence with her two children and …
     Appellant…. Ms. Yocum and … Appellant were paramours for
     approximately nine years at the time of the incident. When Ms.
     Yocum arrived home, … Appellant was in the living room, playing
     on his cellular telephone. Ms. Yocum walked into her bedroom,
     the only bedroom in the residence, and noticed items out of place.
     Specifically, Ms. Yocum noticed a child’s doll propped between her
     bed’s headboard and the wall and that the bed sheets were in
     disarray. Ms. Yocum recalled that the doll was not there prior to
     her leaving for work and [she] believed that the doll had been
     placed between the headboard and the wall to stop the headboard
     from banging against the wall. Ms. Yocum believed that the
     placement of the doll and the unkempt bedsheets were indications
     that … Appellant was having an affair.

     [] Appellant followed Ms. Yocum into the bedroom. When she
     attempted to remove the doll, a nightstand toppled onto Ms.
     Yocum and … Appellant’s feet. [] Appellant became angry and the
     two started to argue. Ms. Yocum told … Appellant to leave the
     residence and headed to the closet to remove … Appellant’s
     belongings. [] Appellant tried to stop her and hit Ms. Yocum on
     the right, rear side of her head with his knuckle. Ms. Yocum
     refused to stop removing his belongings from the closet.

     The argument continued into the living room and Ms. Yocum
     repeatedly asked … Appellant to leave, which he refused to do.
     The two became involved in a physical altercation.

     At some point, Ms. Yocum left the residence to retrieve her
     children from daycare. After approximately 40 minutes, Ms.

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     Yocum returned with her children to the residence. She had her
     children go into the bedroom and watch television. Ms. Yocum
     again directed … Appellant to leave the residence. He again
     refused.

     Ms. Yocum and … Appellant continued to argue, which resulted in
     a physical altercation. Ms. Yocum attempted to disable the
     Internet cord to prevent … Appellant from getting online, but …
     Appellant was able to thwart her efforts. In the course of the
     struggle over the Internet cord, … Appellant kicked Ms. Yocum in
     the upper leg while wearing his Timberland boots. The two
     continued the fight into the living room area where they pushed
     each other. [] Appellant again kicked Ms. Yocum in the upper leg.
     At some point, Ms. Yocum reached down to pick something up
     from the floor and … Appellant took his hand, swinging upwards
     and hitting [Ms. Yocum] on the bridge of her nose with the palm
     of his hand. Ms. Yocum fell to the floor in pain.

     Ms. Yocum went to the bathroom to check on the injury to her
     nose and noticed that it was already beginning to swell. []
     Appellant appeared shocked at her injury but would not let Ms.
     Yocum leave to attend to the injury. The physical altercation
     stopped at that point. Ms. Yocum began to look for her cellular
     telephone but soon realized that … Appellant had disassembled it
     and had hid the pieces. Ms. Yocum took her laptop computer and
     went into her garage.

     [] Appellant kept coming in and out of the garage to check on Ms.
     Yocum. She did not tell him she was using her laptop. Ms. Yocum
     was able to log on to her Facebook account and began to message
     her sister’s account via Facebook Messenger. Ms. Yocum’s niece,
     Sierra Lugo, was using Ms. Yocum’s sister’s account at the time.
     Ms. Yocum told Ms. Lugo that she needed help and that she
     thought her nose was broken and that she was hurt. Ms. Lugo
     inquired about Ms. Yocum’s children and Ms. Yocum indicated that
     they were unharmed.         Ms. Lugo ultimately contacted her
     grandmother, Ms. Yocum’s mother, Bonnie Yocum.

     When Bonnie Yocum received a call from Sierra Lugo, she was
     able to discern that Ms. Lugo was upset. Ms. Lugo related that
     Heather Yocum was in trouble and was hurt badly. Bonnie Yocum
     called Heather Yocum, but Ms. Yocum did not answer the
     telephone. Because Bonnie Yocum is disabled, she called 9-1-1
     to respond to 4173 Roosevelt Street and then decided to go to the



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     residence herself. When she arrived, she was directed by police
     to move out of the immediate area, which she did.

     The Lehigh County Communications Center received the 9-1-1
     call. Due to the fact that members of the Whitehall Township
     Police Department were busy on other calls at the other end of
     the township, Corporal Kevin Querio of the Whitehall Township
     Police Department requested that members of the Northampton
     Police Department assist them in responding to 4173 Roosevelt
     Street to check on the welfare of the occupants.

     At this time, inside of 4173 Roosevelt Street, … Appellant came to
     the garage where Ms. Yocum was and informed her that the police
     were at the residence. Ms. Yocum could hear the police outside
     and heard … Appellant tell them that everything was fine in the
     residence. The police requested that they actually view Ms.
     Yocum and indicated that they would not leave until they were
     able to do so. Ms. Yocum heard … Appellant[’s] arguing with the
     police, telling them that they did not have any right to be at the
     residence.

     Approximately 15 minutes after the initial dispatch to 4173
     Roosevelt Street, further police communication requested that
     Corporal Querio respond to 4173 Roosevelt Street immediately.

     Upon arrival[,] Corporal Querio was informed that the
     Northampton officers had attempted to make contact with the
     individuals in the residence but the male individual on the other
     side of the door refused to open the door to allow officers to check
     on the welfare of those inside. Corporal Querio then knocked on
     the door of 4173 Roosevelt Street and began to speak to a male
     on the other side of the door. Corporal Querio advised the male
     that the police were there to check on the welfare of the
     individuals inside of the home. The corporal was able to hear a
     female[’s] crying, but the male still refused to open the door.
     When Corporal Querio attempted to speak to the female, the male
     would interrupt, telling the officer that she was able to leave
     whenever she wanted to. The male continued to state that he
     knew his rights and that the female could leave whenever she
     wanted to. At one point, … Appellant opened the front blinds for
     a moment, but Corporal Querio was unable to determine if the
     female inside was alright.

     Unknown to the police, … Appellant had moved furniture in front
     of the front door and the rear exit of the residence. Although he


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     wanted her to help move the furniture, Ms. Yocum refused to do
     so. [] Appellant also attempted to hide in the attic crawl space.

     After approximately 15 to 20 minutes of trying to get the male to
     open the door, Corporal Querio determined he needed to summon
     additional law enforcement officers due to the exigency of the
     situation and his inability to establish that the occupants of the
     house were unharmed.          After he had been on scene for
     approximately one hour, the corporal directed two other Whitehall
     Township officers to get a warrant for the home. In addition,
     Corporal Querio requested that the Municipal Emergency
     Response Team (hereinafter “MERT”) be assembled and that
     Detective Timothy Wagner, a negotiator with MERT, be called.

     MERT was assembled and a secure perimeter was established
     around the neighborhood surrounding 4173 Roosevelt Street.
     Detective Wagner eventually spoke to … Appellant who requested
     that the police leave. Detective Wagner told … Appellant that they
     could not do that until they saw both … Appellant and the female
     inside. In total, Detective Wagner spoke with both … Appellant
     and Ms. Yocum for approximately 30 minutes. At times, [Ms.
     Yocum] asked for the police to leave and also hung up on
     Detective Wagner.

     As MERT was positioning, and while Detective Wagner was
     speaking with Ms. Yocum on the telephone, … Appellant emerged
     from the residence. He was searched, handcuffed, and detained
     at the scene. Ms. Yocum did not exit the residence. Corporal
     Querio and Detective Wagner went into the residence and found
     her cowered in a corner, hysterically crying. The officers noticed
     that furniture had been moved to barricade the exits in the front
     and rear of the residence. The officers observed facial injuries to
     Ms. Yocum and she was taken to the hospital.

     Ms. Yocum went to Lehigh Valley Hospital for treatment.
     Approximately two days later, photographs were taken of injuries
     to her face, right leg, upper left thigh, left arm and ribcage. Ms.
     Yocum testified that she was unable to cover up the injuries to her
     face with makeup and that it took a few weeks for all of the
     bruising and scabbing to fully heal.

     On May 10, 2016, Ms. Yocum went to the Whitehall Township
     Police Department to give her statement of what occurred the
     previous evening. The jury was shown an audio and video
     recording of the interview.    Ms. Yocum testified that she
     downplayed the incident when she gave the statement to the

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      police because she was concerned that if … Appellant found out
      that she went to the police, he would retaliate in some way.

Trial Court Opinion (TCO), 5/31/2017, at 2-8 (internal citation and original

brackets omitted).

      On appeal, Appellant raises a single issue for our review:
      Was the verdict against the weight of all the evidence in regards
      to the proof of whether or not [Appellant] was properly convicted
      of simple assault when the testimony implicating [Appellant] was
      inconsistent or contradictory?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      Initially, we set forth our standard of review:
      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict…. An allegation that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court.

      A new trial should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion….

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence.

Commonwealth v. Brown, 48 A.3d 426, 432 (Pa. Super. 2012) (citation

omitted).

      Appellant argues that “he was unjustly and unfairly convicted of

assaulting his former girlfriend when the evidence presented by her was

contradictory and conflicting and would have provided for the verdict to be


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based on conjecture rather than credible evidence.” Appellant’s Brief at 10.

Specifically,   Appellant     claims   that    Ms.   Yocum   had   previously   given

“statements to the police that [Appellant] did not punch her and other

statements which implicated her as the possible aggressor in any physical

confrontation between the parties.” Id. at 11. Consequently, he contends

that “[t]he questionable veracity and reliability of [Ms. Yocum] undermines

the verdict and the decision of the [t]rial [c]ourt to sustain that verdict.” Id.

at 9.

        After closely reviewing the transcripts and exhibits admitted at trial —

including the video offered by the defense of Ms. Yocum’s interview given to

the police the day after the incident where she stated that Appellant did not

mean to purposely hit her nose with his open hand — we reject Appellant’s

weight claim. As the trial court aptly explained:
        Viewing the evidence presented at trial, this [c]ourt has
        determined that the jury’s verdict was not so contrary to the
        evidence presented at trial that a new trial is necessary. The jury
        was free to evaluate the evidence presented by the
        Commonwealth and give what importance it wished to each fact
        and/or testimony presented. While [Appellant] argues that there
        were “serious inconsistencies” and a “lack of credible proof,” it is
        clear that the jury either did not find any inconsistencies in the
        testimony of the various witnesses and/or the different
        statements made by Heather Yocum or did not find that the
        inconsistencies were significant enough for the members of the
        jury to discredit the testimony.[1] Further, Ms. Yocum’s testimony
____________________________________________


1Ms. Yocum testified that she “downplayed” the incident in her police interview
because she “didn’t want to convict [Appellant],” and be the reason why he
has to spend time in jail. See N.T. Trial, 2/28/2017, at 102-03. We



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       regarding the sequence of events and … Appellant’s actions were
       supported by the testimony of Ms. Lugo, as well as the Facebook
       messenger messages shown to the jury at the time of trial.[2] In
       addition, Ms. Yocum’s testimony regarding her injuries was
       bolstered by the testimony of Corporal Querio and Detective
       Wagner when they testified that they observed visible injuries on
       [Ms. Yocum] when they saw her immediately after the incident.[3]
       In sum, the verdict rendered by the jury does not “shock one’s
       sense of justice” and therefore, the [c]ourt refused to disturb the
       verdict rendered in this case.

TCO at 9-10. We agree. Accordingly, we conclude that the verdict was not

against the weight of the evidence, and affirm Appellant’s judgment of

sentence.

       Judgment of sentence affirmed.




____________________________________________


acknowledge that she testified at trial that Appellant hit her multiple times,
see id. at 62-63, 65, kicked her in her leg, see id. at 65, and hit her on the
bridge of her nose with the palm of his hand, id. at 66. After she was hit in
the nose and her face was starting to bruise, Ms. Yocum testified that
Appellant’s reaction “was, like, oh, my God. Like, you could tell he was
shocked. Like, shit, like, you can’t hide that. There’s no hiding it.” Id. at 66-
67.

2In the Facebook messages, Ms. Yocum said she was trapped and needed
help, and that she thought her nose was broken. See Commonwealth’s
Exhibit 1. She also explained that she did not want to get anyone involved,
but did not know what to do. Id.

3Corporal Querio specifically testified that “[w]hile observing [Ms. Yocum after
she exited the house], she appeared to have some injuries on her face. Her
nose appeared to be slightly canted, as if it was struck. She appeared to have
bruising under her one eye. She appeared to have a fresh lump on the side
of the other eye.” N.T. Trial, 2/28/2017, at 119-20. Similarly, Detective
Wagner stated that he “saw that [Ms. Yocum] had injuries to her nose, to her
eye, [and] to her face” when she came out of the house. N.T. Trial, 3/1/2017,
at 20-21.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/18




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