J-S33038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                               Appellee

                         v.

LAWRENCE CHAPLIN SHUGARS

                               Appellant                     No. 1712 WDA 2015


             Appeal from the Judgment of Sentence April 10, 2014
               In the Court of Common Pleas of McKean County
             Criminal Division at No(s): CP-42-CR-0000425-2013;
                            CP-42-CR-0000434-2013


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                                   FILED JULY 14, 2016

        Appellant, Lawrence Chaplin Shugars, appeals from the judgment of

sentence entered in the McKean County Court of Common Pleas, following

his jury trial convictions for two counts each of simple assault and

harassment,      three        counts   of   recklessly   endangering   another   person

(“REAP”), and one count of disorderly conduct.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

Appellant resided with N.S. and her three-month old son. On the morning of

July 11, 2013, Appellant and N.S. had an argument at their house.                  N.S.

entered Appellant’s car with her son.             Appellant told her to get out of the
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1
    18 Pa.C.S.A. §§ 2701(a)(1), 2709(a)(1), 2705, 5503(a)(1), respectively.


___________________________

*Former Justice specially assigned to the Superior Court.
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car, which she did. Appellant then walked toward N.S., grabbed the car seat

and diaper bag, and threw them in the yard. Appellant yelled at N.S. to go

back into the house. When N.S. refused, Appellant said, “Don’t make me do

it out here,” and ordered her to hand him the baby. N.S. initially refused

but ultimately handed her son to Appellant.    N.S. then slipped and fell in

mud. Appellant began to kick N.S. multiple times in the face, stomach, and

legs as he held the baby with one arm. A neighbor witnessed the assault.

Appellant then ran into the house and left the baby face-down hanging off

the couch and crying. Appellant returned outside, told N.S. the police were

coming, and drove off. Appellant told N.S. to call him when the police were

gone.    N.S. contacted Amy Pierce, an acquaintance from the YWCA.       The

police and Ms. Pierce arrived at the house around the same time. N.S. told

the officers she had only argued with Appellant. The officers believed N.S.

was not divulging the entire story and advised her to leave the house with

her son. Ms. Pierce drove N.S. and her son to the YWCA. N.S. then left her

son in the care of Ms. Pierce and exited the YWCA.

        While walking to a friend’s house, N.S. encountered Appellant in the

street. N.S. continued into her friend’s house. Appellant yelled insults and

obscenities at N.S. N.S. exited the rear of the house and entered the car of

another acquaintance in an attempt to leave the area.     Before they could

leave, Appellant pulled up in his car. N.S. approached Appellant’s car, and

he repeatedly told her to enter the vehicle. N.S. ultimately sat in the front


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passenger seat of the car after Appellant promised not to hit her again.

Appellant drove toward a highway. While on the highway, N.S. tried to open

the car door because she was scared Appellant would assault her again.

When Appellant attempted to hit N.S., she tried to jump out of the car but

her legs were stuck. N.S. held herself up with her arms while her rear end

dragged on the road. At that point, Appellant was driving around 20 MPH.

N.S. asked Appellant to stop the car.             Appellant continued to drive for

approximately fifteen seconds before stopping.               After N.S. exited and

reentered the car, Appellant drove back to the house.            Appellant and N.S.

began to argue again, and Appellant eventually left.            N.S. later met with

Detective Yingling at the house. Detective Yingling took N.S. to the police

station to provide a written statement, after which N.S. went to the hospital.

      On March 4, 2014, a jury convicted Appellant of two counts each of

simple assault and harassment, three counts of REAP, and one count of

disorderly conduct.    On April 10, 2014, the court sentenced Appellant to

consecutive terms of incarceration of twelve (12) to twenty-four (24)

months for each count of simple assault and one count of REAP.                   The

remaining counts merged for sentencing.                 Thus, the court imposed an

aggregate   sentence    of   thirty-six    (36)    to    seventy-two   (72)   months’

incarceration.   Appellant timely filed a petition under the Post Conviction

Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546, on January 21, 2015,

which sought reinstatement of his direct appeal rights nunc pro tunc. The


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PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc on

August 27, 2015. On September 3, 2015, Appellant timely filed a notice of

appeal nunc pro tunc.       The trial court ordered Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b);

Appellant timely complied.

      Appellant raises the following issues for our review:

         WAS THERE SUFFICIENT EVIDENCE TO CONVICT
         [APPELLANT] ON ALL COUNTS OF SIMPLE ASSAULT?

         WAS THERE SUFFICIENT EVIDENCE TO CONVICT
         [APPELLANT] ON   ALL  COUNTS OF RECKLESSLY
         ENDANGERING ANOTHER PERSON?

         DID THE TRIAL COURT ERR WHEN IT GRANTED THE
         COMMONWEALTH’S MOTION IN LIMINE PREVENTING THE
         DEFENSE FROM QUESTIONING THE VICTIM REGARDING
         HER WORK AS A CONFIDENTIAL INFORMANT?

         WAS TRIAL COUNSEL INEFFECTIVE WHEN HE FAILED TO
         OBJECT TO THE TESTIMONY OF DR. JOHN BRESNICK
         WHEN THE DOCTOR WAS NOT OFFERED AS AN EXPERT
         WITNESS BUT PROVIDED OPINION EVIDENCE?

(Appellant’s Brief at 4).

      In his first issue, Appellant argues his neighbor did not have a close

view of the initial altercation between Appellant and N.S. and gave

contradictory testimony regarding that incident.      Appellant contends N.S.

admitted in phone calls with Appellant that she had lied to the police and

Appellant had not assaulted her. Appellant asserts the responding officers

failed to testify and no “impartial” evidence was introduced regarding

injuries sustained by N.S.      With respect to the second incident on the

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highway, Appellant argues the Commonwealth failed to present evidence

that Appellant intended to cause harm to N.S. Appellant avers the evidence

showed N.S. caused her own injuries when she opened the car door while

the vehicle was in motion.    Appellant claims the jury acquitted him of the

simple assault charge based on the allegation that Appellant struck N.S. in

the face while driving, negating the possibility that Appellant’s actions in the

car forced N.S. to exit the vehicle.    Appellant maintains he attempted to

mitigate the harm by slowing down and stopping the car as soon as he

realized what N.S. was doing.        Appellant concludes the evidence was

insufficient to sustain his convictions for simple assault. We disagree.

      The following principles of review apply to challenges to the sufficiency

of evidence:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [finder] of fact
         while passing upon the credibility of witnesses and the

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          weight of the evidence produced, is free to believe all, part
          or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

     “[C]redibility   determinations      are    made    by    the   fact   finder

and…challenges thereto go to the weight, and not the sufficiency, of the

evidence.”    Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997).    See also Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.

2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (stating defendant’s

claim he was wrongly identified as perpetrator of crimes based on

“unbelievable identification testimony” went to witness’ credibility and

challenged weight, not sufficiency, of evidence). A challenge to the weight

of the evidence must be preserved in a motion for a new trial. Pa.R.Crim.P.

607. The Rule provides:

          Rule 607. Challenges to the Weight of the Evidence

          (A) A claim that the verdict was against the weight of the
          evidence shall be raised with the trial judge in a motion for
          a new trial:

             (1) orally, on the record, at any time before
             sentencing;

             (2) by written      motion     at   any    time   before
             sentencing; or

             (3)   in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).     “As noted in the comment to Rule 607, the

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purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004).

      The Crimes Code defines the offense of simple assault in relevant part

as follows:

         § 2701. Simple assault

         (a) Offense defined.—Except as provided under section
         2702 (relating to aggravated assault), a person is guilty of
         assault if he:

              (1) attempts to cause or intentionally, knowingly
              or recklessly causes bodily injury to another[.]

18 Pa.C.S.A. 2701(a)(1).

      Instantly, Appellant’s complaint regarding the lack of police testimony,

and his challenges to the credibility of N.S. and the neighbor, implicate the

weight, not the sufficiency, of the evidence.        See Gaskins, supra.

Appellant, however, failed to raise a weight claim before the trial court at

any time in a motion for a new trial. Therefore, Appellant waived his weight

claim with respect to the simple assault conviction arising from the incident

outside the house. See Pa.R.Crim.P. 607; Gillard, supra.

      Regarding the incident on the highway, N.S. testified that Appellant

reached over to hit her right before she attempted to jump out of the

vehicle. N.S. then became stuck between the car and the road and injured

her body as she was dragged along the road. Appellant continued to drive

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for approximately fifteen seconds before stopping. Therefore, the testimony

of N.S. was sufficient for the jury to find Appellant attempted to cause or

intentionally, knowingly or recklessly caused bodily injury to N.S.    See 18

Pa.C.S.A. 2701(a)(1); Jones, supra.2

       In his second issue, Appellant argues N.S. did not suffer serious bodily

injury during the incident outside the house, and the Commonwealth failed

to produce evidence of Appellant’s intent to cause serious bodily injury.

Appellant also contends his actions of holding the baby during the assault

and placing the baby on the couch did not support an inference that

Appellant recklessly placed the baby in danger of death or serious bodily

injury. Appellant asserts he was at most negligent but did not consciously

disregard a known risk of death or serious bodily injury to the baby. With

respect to the incident on the highway, Appellant again claims he did not

cause N.S. to attempt to exit the vehicle while it was in motion. Appellant

maintains N.S. acted of her own volition, and he attempted to mitigate the
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2
  Appellant misconstrues the factual basis for the lone simple assault charge
that resulted in an acquittal. That charge related to the allegation that
Appellant repeatedly struck N.S. in the face when she first entered the
vehicle with him (before Appellant drove onto the highway). The jury was
still free to determine that Appellant attempted to strike N.S. right before
she opened the car door on the highway. The incident in the car also took
place not long after Appellant had already threatened and repeatedly kicked
N.S. while she lay on the ground outside the house. Moreover, the jury was
free to reach inconsistent verdicts, in any event. See Commonwealth v.
Miller, 613 Pa. 584, 588, 35 A.3d 1206, 1208 (2012) (stating inconsistent
verdicts “are allowed to stand so long as the evidence is sufficient to support
the conviction”).



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situation by stopping the car as soon as feasible. Appellant challenges the

testimony of N.S. regarding how long he continued to drive while she hung

out of the car. Appellant submits N.S. did not suffer serious bodily injury as

a result of that incident. Appellant concludes the evidence was insufficient

to sustain any of his three convictions for REAP. We disagree.

      The Crimes Code defines REAP as follows:

        § 2705. Recklessly endangering another person

        A person commits a misdemeanor of the second degree if
        he recklessly engages in conduct which places or may
        place another person in danger of death or serious bodily
        injury.

18 Pa.C.S.A. § 2705.     The mens rea required for REAP is “a conscious

disregard of a known risk of death or great bodily harm to another person.”

Commonwealth v. Klein, 795 A.2d 424, 427-28 (Pa.Super. 2002).

      Instantly, N.S. testified that during the initial incident at the house,

Appellant repeatedly kicked her in the face, stomach, and legs. When asked

how hard the kicks were on a scale of one to ten, N.S. replied nine or ten.

Appellant also held the three-month-old infant while he assaulted N.S. in a

muddy area.    Appellant then left the baby facedown hanging off a couch

inside the house.   N.S. testified that the baby could not support its own

head. Thus, the evidence was sufficient for the jury to find that Appellant

placed both N.S. and her son in danger of serious bodily injury during the

altercation at the house. See 18 Pa.C.S.A. § 2705; Klein, supra. Likewise,

the testimony of N.S. regarding the subsequent incident on the highway

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established that Appellant attempted to hit N.S. again, which prompted her

to open the car door. Appellant did not immediately stop the car when N.S.

became stuck and her body made contact with the road. Appellant’s conduct

amounted to a conscious disregard of a risk of serious bodily injury to N.S.

See id.    Actual serious bodily injury or death was not required to convict

Appellant of REAP.          Based on the foregoing, all of Appellant’s REAP

convictions were supported by sufficient evidence.3 See Jones, supra.

       In his third issue, Appellant argues the court should have allowed him

to cross-examine N.S. regarding her prior work as a confidential informant

(“CI”) for Detective Yingling. Appellant asserts this particular evidence was

crucial to the defense theory that N.S. potentially gave false statements

under pressure from Detective Yingling.            Appellant claims he could not

develop a full picture of the relationship between Detective Yingling and N.S.

without referring to her work as a CI. Appellant further contends defense

counsel was ineffective for failing to respond to the Commonwealth’s motion

in limine, which sought to prohibit disclosure of work N.S. performed as a CI.

Appellant concludes the court erred when it granted the Commonwealth’s

motion in limine. We disagree.

       “[A] court’s decision to grant or deny a motion in limine is subject to

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3
  Appellant’s attack on the credibility of N.S. again constitutes a challenge to
the weight of the evidence, which Appellant failed to preserve. See Gillard,
supra.



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an evidentiary abuse of discretion standard of review.” Commonwealth v.

Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (en banc).               Likewise, “Our

standard of review of claims that a trial court erred in its disposition of a

request for disclosure of an informant’s identity is confined to abuse of

discretion.”    Commonwealth v. Watson, 69 A.3d 605, 607 (Pa.Super.

2013) (quoting Commonwealth v. Washington, 63 A.3d 797, 801

(Pa.Super. 2013)).

      “[R]egardless of whether the informant was an eyewitness to the

transaction for which the defendant was charged, the Commonwealth retains

a   qualified    privilege   not   to     disclose   an   informant’s   identity.”

Commonwealth v. Withrow, 932 A.2d 138, 140-41 (Pa.Super. 2007).

         To overcome that privilege, the defendant must show that
         his request for disclosure is reasonable and that the
         information sought to be obtained through disclosure is
         material to the defense. Although the defendant need not
         predict exactly what the informant will say, he must
         demonstrate at least a reasonable possibility the
         informant’s testimony would exonerate him. Only after
         this threshold showing that the information is material and
         the request reasonable is the trial court called upon to
         determine whether the information is to be revealed.

Id. at 141 (internal citations and quotation marks omitted).

      “Except as provided in Rule 906 (Answer to Petition for Post-Conviction

Collateral Relief), an answer to a motion is not required unless the judge

orders an answer in a specific case as provided in Rule 577.            Failure to

answer shall not constitute an admission of the facts alleged in the motion.”

Pa.R.Crim.P. 575. Nevertheless, “the judge would have discretion to impose

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other appropriate sanctions if a party fails to file an answer ordered by the

judge or required by the rules.” Id. Comment.

      Instantly, the Commonwealth filed a motion in limine on October 14,

2013, which sought to prohibit Appellant from inquiring whether N.S. worked

as a CI.   The Commonwealth subsequently filed a brief in support of the

motion. Appellant filed no answer or brief in response, despite a court order

directing him to do so.   The court granted the Commonwealth’s motion in

limine on February 24, 2014. The court had discretion to grant the motion

as a sanction for Appellant’s failure to comply with the court’s order to file a

response. See id.

      Moreover, any prior work of N.S. as a CI in unrelated investigations

was irrelevant to this case.   N.S. testified here as a victim in a domestic

violence matter, and Appellant’s offenses had nothing to do with any

investigation involving use of a CI. Further, Appellant was able to develop

the relationship between N.S. and Detective Yingling without delving into her

CI work. On direct examination, N.S. revealed that she had a preexisting

relationship with Detective Yingling. N.S. said the detective was “somebody

[who] is helping me with my past to get clean.” (N.T. Trial, 3/3/14, at 29-

30). N.S. also testified on direct and cross-examination as to whether her

statement to the police was influenced by her relationship with Detective

Yingling. Appellant failed to establish that disclosing the status of N.S. as a

CI was material to his defense, reasonable, and in the interests of justice.


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See Withrow, supra. Based on the foregoing, the court properly granted

the Commonwealth’s motion in limine.4 Accordingly, we affirm.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




____________________________________________


4
  To the extent Appellant claims counsel was ineffective for failing to file a
response to the Commonwealth’s motion, that issue is not properly before
us. See Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013)
(stating ineffective assistance of counsel claims generally are to be deferred
to collateral review). In his fourth issue, Appellant argues counsel also was
ineffective for failing to object to the opinion testimony of a Commonwealth
witness. That issue is likewise inappropriate on direct appeal and should be
raised in a timely PCRA petition. See id.



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